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OCR’s UVA Title IX Findings and Resolution
Posted by On Wednesday, May 11, 2016

As schools plan for the next academic year, it’s an opportunity to look back at how Title IX policies, procedures, and prevention programs can be improved for effectiveness and Title IX compliance. To help guide this effort, it’s instructive to look at the Department of Education’s Office for Civil Rights’ resolution agreement with the University of Virginia, which is a comprehensive real case study of Title IX compliance. While the OCR found that UVA’s sexual assault and sexual misconduct policies violated Title IX, UVA’s revised policies and procedures for investigating and resolving reports of sexual harassment and violence have the OCR’s stamp of approval.

From the OCR’s UVA investigation and guidance documents, we’ve compiled the following list of essential steps to achieving Title IX compliance and increasing campus safety.

Title IX Coordinator

In April 2015, the OCR issued a Dear Colleague Letter reminding schools that receive federal financial assistance to designate at least one employee who has the time, training, and authority to address complaints, as well as coordinate and oversee the school’s efforts to comply with Title IX and related laws. The DCL states that this Title IX coordinator should report directly to “senior leadership,” such as the college or university president, to avoid any conflicts of interest. Schools should not designate persons with other job duties that may interfere with their ability to fair and impartial. Another takeaway from the DCL is that interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.

A Letter to Title IX Coordinators was also issued with a Resource Guide explaining their responsibilities and authority. These documents emphasize the importance of each school having a dedicated person who has the necessary training to coordinate responses to all reports and complaints raising Title IX issues.

Title IX Policies

The Resource Guide emphasizes that Title IX coordinators play an important role to ensure a nondiscriminatory environment. Specifically, the OCR recommends that Title IX coordinators should be involved in drafting and revising a school’s Title IX policies and grievance procedures to make sure they:

  • Explain prohibited behavior and conduct proceedings in plain English
  • Define prohibited behavior the same across all policies
  • Encourage reporting

Additionally, policies and procedures should be made available in places where they are easily found, applied uniformly in all cases involving sexual/interpersonal harassment or violence against students, and reviewed at least annually, and sooner if laws change.

The White House Task Force’s Resource Guide and notalone.gov provide checklists and model definitions of prohibited conduct.  In addition, the Association for Student Conduct Administration offers these recommendations:

  • Define consent and incapacitation (intoxicated vs. incapacitated)
  • State that students or the institution may initiate a complaint
  • Do not place time limits on filing a complaint
  • Encourage reporting by including an amnesty policy for conduct violations involving alcohol or drugs at or near the time of the incident

Grievance Proceedings

The OCR’s Q&A states that provisions for “adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and alleged perpetrator to present witnesses and evidence,” should be included in a school’s grievance procedures.  And Title IX requires schools to “adopt and publish grievance procedures providing for the prompt and equitable resolution of student and employee sex discrimination complaints.” (OCR on Title IX and Sexual Violence, C-1)

A school’s resources and support, not Title IX, determine the most appropriate adjudication model to determine the facts of a case. The most common models are:

  • Single investigator
  • Administrative or panel hearing
  • Hybrid of hearing and single investigator models

Appearance of Conflict of Interest

In the OCR’s UVA Letter of Finding, it found an “appearance of a conflict of interest” based on the multiple roles played by a key individual in the panel hearing process: “the same individual went from being tasked under the [Sexual Misconduct Policy] to ‘identify forms of support or immediate interventions’ for the complainant to being a neutral decision-maker, and then to possibly defending a decision of the [Sexual Misconduct Board] Panel on appeal.” UVA LOF, p. 15)

Since most of these cases involve “he said-she said” situations with alcohol or drug impairment, it is critical that decisions are made by  persons who are impartial and trained in the complexities of sexual assault, where the effects of trauma can affect victims’ reactions and ability to recall details. The Association for Student Conduct Administration has put together a list of training topics for adjudicators and hearing board members. (See ASCA’s Student Conduct Administration & Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on College Campuses, Appendix A.)

It is interesting to note that the Commonwealth of Virginia is considering a system of resolving sexual assault cases outside of universities made up of impartial trained investigators, which was first proposed by John Banzhaf, a public interest law professor at George Washington University.

While OCR guidance and court orders don’t provide specific answers, they provide guidelines that allow flexibility to address misconduct in a way that reflects your student population and administrative resources, as long as the response is prompt and impartial.

Prompt and equitable

When evaluating policies and procedures, the OCR looks for these critical elements to meet the “prompt and equitable” standard for Title IX compliance:

  • Notice to students and employees of the procedures, including where complaints may be filed;
  • Application of the procedures to complaints alleging discrimination and harassment carried out by employees, other students, or third parties;
  • Provision for adequate, reliable, and impartial investigation of complaints, including the opportunity for both the complainant and respondent to present witnesses and other evidence;
  • Designated and reasonably prompt timeframes for the major stages of the complaint process;
  • Written notice to both parties of the outcome of the complaint and any appeal; and
  • Assurance that the recipient will take steps to prevent recurrence of any sex discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others, if appropriate. (OCR’s UVA LOF.

Basically, if a school’s policies and procedures contain these Title IX elements they also satisfy due process requirements afforded to students attending public institutions, which require:

  • Written notice of the allegations and nature of the evidence; and
  • A fair opportunity to present the student’s position, explanations, and evidence.

We’ve previously written about due process requirements, including the differences between conduct proceedings vs. criminal trials, and the right to cross-examine witnesses. As pointed out in our post, the OCR’s position on allowing the accused to question adverse witnesses through the hearing officer – but not direct cross examination – does not violate constitutional due process.

Campus Climate Surveys

In order to inform these policies, procedures, and prevention programs each school should conduct an annual “climate assessment” to gather data from students about incidents of sexual harassment and violence, find ways to encourage reporting, and develop prevention strategies that meet the needs of your campus community. The primary goal of the AAU climate survey was to inform policies to prevent and respond to sexual assault and misconduct.

In addition to informing policies and creating effective prevention strategies, conducting campus climate surveys provides critical data for allocating resources, which we have written extensively about on this blog. And the OCR has required climate surveys in several resolution agreements: University of Virginia, Michigan State University, Ohio State UniversityUniversity 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, Rockford University.

Conclusion

Every college and university has a unique student population with its own culture and complexity. Our goal at CampusClarity is to provide useful information to help all schools reach a common goal:  create policies, procedures, and prevention programs that eliminate sexual harassment on campus, off campus, and online.

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Are Climate Surveys Part of Title IX/Clery Act Compliance?
Posted by On Wednesday, September 9, 2015

On April 29, 2014, the White House Task Force issued its “Not Alone” report with an overview of how to plan and conduct a campus sexual assault climate survey, as well as a sample survey based on best practices. The report urges “schools to show they’re serious about the problem by conducting the survey next year.”

In a May 2015 article, “Climate Surveys Are Coming,” readers were told, “The task force’s suggestion that schools conduct climate surveys is one of several signals that surveys soon will be required as part of a Title IX/Clery Act compliance program.”

On the same day that the White House report came out, the Department of Education’s Office for Civil Rights issued the guidance document, “Questions & Answers on Title IX and Sexual Violence,” which listed conducting climate surveys as one of the ways to “limit the effects of the alleged sexual violence and prevent its recurrence,” if a victim requests confidentiality and does not want formal action taken against the alleged perpetrator.

Other signals that campus climate surveys soon may be mandated include OCR agreements resulting from Title IX investigations and compliance reviews that require schools to conduct surveys, including: Michigan State University, Ohio State University, University of Montana, Southern Methodist University, Lehigh University, Harvard Law School, Lyon College, Virginia Polytechnic Institute and State University, University of Dayton, Cedarville University, Glenville State College, Kentucky Wesleyan College, State University of New York, and Rockford University.

Instead of waiting for federal laws or Title IX guidance that mandate climate surveys, some states have already enacted laws requiring them:

  • Maryland House Bill 571 requires institutions of higher education to “DEVELOP AN APPROPRIATE SEXUAL ASSAULT CAMPUS CLIMATE SURVEY, USING NATIONALLY RECOGNIZED BEST PRACTICES FOR RESEARCH AND CLIMATE SURVEYS,” and submit to the Maryland Higher Education Commission on or before June 1, 2016 (and every two years thereafter), a report aggregating the data collected by the survey, including:
        1. Types of misconduct
        2. Outcome of each complaint
        3. Disciplinary actions taken by institutions
        4. Accommodations made to students
        5. Number of reports involving alleged nonstudent perpetrators
  • The New YorkEnough is Enough” law signed on July 7, 2015, requires all New York colleges and universities to conduct campus climate surveys at least every other year. The survey requirement goes into effect on July 7, 2016.
  • The State of Washington passed a new law (SSB 5518.SL), requiring state universities, the regional universities, The Evergreen State College, the community colleges, and the technical colleges to conduct a campus climate survey and report their findings to the governor and legislature by December 31, 2016.
  • Louisiana passed a new law (SB 255) which provides, “When funding is made available, each public postsecondary education institution shall administer an annual, anonymous sexual assault climate survey to its students.”
  • In addition, the Massachusetts legislature is considering Bill S. 650, which would create a task force to develop a sexual assault climate survey to be administered by colleges and universities selected by the task force.

Meanwhile, Boston University launched a student survey in March 2015 (see FAQs about BU’s survey) and, while not required by law, the University of California conducted a campus climate survey on its campuses in Spring 2013 (see results and FAQs). Previously, we’ve reported on published data from other climate surveys, what experts say, and how to get started.

With Congress back in session, the Campus Accountability and Safety Act may have gained some momentum from the July 29th hearing before the Senate Committee on Health, Education, Labor & Pensions. Testimony received at that hearing included strong support from the Association of American Universities for campus climate surveys, pointing out that it is important that schools directly or indirectly control survey administration so that it addresses the unique circumstances of individual campuses.

We will continue to watch this closely as the patchwork quilt of climate survey requirements continues to unfold. We will also be hosting a webinar on Tuesday, October 13th with Peter Novak from University of San Francisco and Jessica Ladd from Sexual Health Innovations about climate surveys and data.  Follow our twitter account @CampusClarity for the link to register as the date gets closer.

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Weekly Roundup
Posted by On Friday, May 22, 2015

A new study reveals a sexual assault epidemic at one school in New York, Huffington Post publishes a list of schools under Title IX investigation for sexual harassment, and U.S. News looks at what’s working and what still needs to be done in the fight against campus sexual assault.

New Study Published on the Prevalence of Sexual Assault

We’ve written extensively about the debate over the prevalence of sexual assault on college campuses, and the need for more data about the rate at which college students are victimized by sexual violence. Now, a new study published by the Journal of Adolescent Health suggests there is at least one upstate New York university where over 18% of women will become victims of rape or attempted rape by the end of their freshman year. Rape was defined as “vaginal, oral, or anal penetration using threats of violence or use of physical force, or using the tactic of victim incapacitation.” 15% of the women surveyed were victims of completed or attempted rape while they were incapacitated, and a further 9% were victims of completed or attempted rape by force. While the survey’s small sample size means that it will not be putting the debate over the nation-wide prevalence of sexual assault to rest, it serves as further evidence of the desperate need to address college campus rapes.

Schools under Title IX Investigation for Sexual Harassment Cases

The Department of Education’s OCR has been disclosing the names of schools under Title IX investigation for failing to properly adjudicate sexual assault cases for some time. What they haven’t done, until now, is release the names of schools under Title IX investigation for mishandling sexual harassment cases. Now, thanks to a Freedom of Information Act request submitted by the Huffington Post, that list of schools is available—click the link above to see it on their website. The Huffington Post makes a strong argument for the relevance of this information to current and prospective students of the listed institutions, pointing out that besides the impact harassment itself has on a student’s well-being and learning environment, such behavior is “inextricably linked” to sexual assault.

Sexual Assault: What’s Working, What Work Still needs to be Done

This piece from US News and World Report takes a look back at some of the efforts to combat sexual assault we’ve seen over the past few years. While the article highlights impressive gains, especially in the arena of increased awareness, it also points out that there is much work that still needs to be done. The piece calls for ongoing training programs that make an actual effort to change campus culture, as opposed to brief sessions intended only to fulfill a legal requirement, and for colleges “to take a more comprehensive approach to addressing sexual assault, rather than a piece-by-piece approach.”

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Weekly Roundup
Posted by On Friday, May 8, 2015

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

Good News: The Number of Reported Sexual Assaults is Up

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

Bad News: The Length of OCR Investigations is Also Up

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

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

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

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Weekly Roundup
Posted by On Friday, May 1, 2015

Why prevention efforts need to start as early as high school, the University of California’s response to the California State Auditor’s review and OCR investigations, and Bud Light retracts an ill-considered slogan.

Sexual Violence Starts in High School—Prevention Must Too

According to the Rape, Abuse & Incest National Network, 44% of sexual assaults are committed when the victim is not yet 18. This piece in the Huffington Post by writer and activist Soraya Chemaly makes an important point: Clearly sexual assault does not begin in college. Prevention efforts shouldn’t either. Chemaly goes on to outline other alarming statistics about the young ages of both victim/survivors and perpetrators and points to a number of horrific rape cases involving high school-aged victims and perpetrators to make her case that high schools can and must do more to address sexual violence. She also outlines some of the obstacles to that seemingly obvious step, including the lack of available resources and discomfort of having a conversation about these difficult topics with teenagers. Nevertheless, Chemaly stresses beginning prevention as early as possible is crucial not only to protect American high schoolers but also to provide them with the tools they need to protect themselves when they leave home for college.

How the UC System is Starting to Address It’s Sexual Violence Problem

This piece from USA Today follows up on the University of California in the midst of OCR investigations of several of the state’s largest campuses, including UCLA and UC Berkeley, and nearly a year after the California State Auditor released their report on the UC system’s sexual assault practices. The article covers the background of the report and investigations, focusing on the efforts of student activists in filing a Clery Act complaint and Title IX claims against UC Berkeley. It also reports on what the UC system has done to address the inadequacies which led to the investigations and were covered by the CSA report. These changes include mandatory sexual violence prevention training, the hiring of confidential survivor advocates, and a survivor resource specialist. However, university officials and activists alike stress how much more work remains if the UC system is to do all it can to prevent sexual violence and support its victim/survivors.

Bud Light Corrects a Thoughtless Slogan

According to a poorly thought-out slogan featured on new packaging, Bud Light is “the perfect beer for removing ‘no’ from your vocabulary for the night.” It didn’t take long for Reddit and Twitter users to point out what apparently slipped past everyone at Anheuser-Busch: The ugly way that particular slogan recalls the connection between intoxication and sexual assault, and especially the way alcohol can and is used as a weapon by perpetrators against their victims. To the company’s credit, an apology was issued swiftly and the offending slogan won’t be printed again. Still, the whole episode is an important reminder of the need to consider language and how it affects culture and behavior.

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Three Takeaways From the OCR’s Guidance Package
Posted by On Wednesday, April 29, 2015

Without much fanfare, the Department of Education’s Office for Civil Rights issued a “Guidance Package” on April 24, 2015, which includes a Dear Colleague Letter (DCL), a Dear Title IX Coordinator Letter, and a Title IX Resource Guide. The three takeaways from the OCR’s Guidance Package are: (1) all primary, secondary, and postsecondary schools must have a Title IX coordinator; (2) Title IX coordinators must be given adequate authority and training to meet their obligations; and (3) interfering with a Title IX coordinator’s efforts to do their job violates Title IX’s anti-retaliation provision.

The DCL is a seven-page reminder that “all school districts, colleges, and universities receiving Federal financial assistance must designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX . . ..” Another significant guidance document—Questions and Answers on Title IX and Sexual Violence, released in April of 2014 — had already pointed out that designating a Title IX coordinator is one of three key procedural requirements in the Title IX regulations. This latest DCL leaves no doubt that this is not a matter of simply adding a title to someone’s long list of job duties:

This position may not be left vacant; a recipient must have at least one person designated and actually serving as the Title IX coordinator at all times.

An OCR spokesperson said that many schools currently under investigation do not have a Title IX coordinator. For example, Brown University just hired its first Title IX coordinator this month. Apparently, the OCR is lighting a fire under schools that have not yet taken this step.

The DCL lays out the Title IX coordinator’s responsibilities and authority, emphasizing that it is a Title IX violation to interfere with the Title IX coordinator’s performance of their job responsibilities:

Title IX’s broad anti-retaliation provision protects Title IX coordinators from discrimination, intimidation, threats, and coercion for the purpose of interfering with the performance of their job responsibilities.

To establish a strong and visible role in the community for the Title IX coordinator, the DCL encourages schools to create a prominent link on its homepage to a dedicated webpage with the Title IX coordinator’s contact information, Title IX policies and grievance procedures, and other resources related to Title IX compliance and gender equity.

To keep informed of the laws, regulations, and OCR guidance on campus safety, the DCL recommends regular training for Title IX coordinators and all employees whose responsibilities are related to the school’s Title IX obligations.

Also included in the guidance package is a Letter to Title IX Coordinators with a Resource Guide, which covers Title IX basics, as well as the Title IX coordinator’s administrative duties and role in helping schools meet their Title IX obligations. The letter contains this warning: “To be an effective Title IX coordinator, you must have the full support of your institution.”

As Catherine Lhamon, assistant secretary for civil rights, said in the OCR’s press release, “A critical responsibility for schools under Title IX is to designate a well-qualified, well-trained Title IX coordinator and to give that coordinator the authority and support necessary to do the job.”

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Weekly Roundup
Posted by On Friday, March 13, 2015

An interview with the director of new documentary The Hunting Ground, the Clery act turns 25, and the OCR reveals it is investigating four more schools—pushing the total over 100.

The Hunting Ground Director on Courageous Survivors and the Birth of the Film

An interview with Director Kirby Dick about his latest documentary, The Hunting Ground, offers a disturbing portrait of the prevalence of sexual violence on college campuses as he describes “hearing the same story over and over” when interviewing victim/survivors about their assault, sexual predators, and the institution’s response. This interview with Dick in the National Post offers sobering insight into the process of the film’s creation. Dick talks about how the conversation sparked by campus screenings of his previous film, The Invisible War, which dealt with sexual assault in the military, led him and producer Amy Zeiring to make a documentary about the same crime in the context of higher education. During Q&As after showing The Invisible War, students quickly turned the discussion to campus sexual assault and then he started getting emails and letters asking him to “please make a film.” Dick says it’s exciting to see the courage of college-aged advocates who “take on their institutions…to create this national debate,” but creating safe campus environments “should be on everyone.”

Clery Act Turns 25

Today marks the twenty-fifth anniversary of the Clery Act, named in memory of Jeanne Clery, a Lehigh freshman who was sexually assaulted and murdered in her dorm. The law requires colleges and universities to disclose reports of crimes committed on and near campus. Earlier this month marked the second anniversary of the Campus SaVE Act  that expanded higher education institutions’ crime reporting requirements to include relationship violence, stalking, and hate crimes based on gender identity and national origin.   In addition, the Campus SaVE Act requires colleges and universities to develop comprehensive prevention programs to train students and employees how to recognize, report, respond to, and prevent campus sexual violence.

OCR Now Investigating Over 100 Schools

Last week we reported that Grinnell College has requested an OCR investigation of their own sexual assault investigation procedures. This week we have a story that makes it clear that if that request is granted, Grinnell will be far from alone. In fact, as of this month, the Office for Civil Rights is investigating over a hundred schools for possible non-compliance with Title IX and the Clery act, an all-time high. When the OCR first released the list of schools under investigation last April there were fifty-five schools under investigation.

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Weekly Roundup
Posted by On Friday, March 6, 2015

For this week’s roundup we have Grinnell’s unusual request to be investigated by the OCR and two stories related to a topic we’re particularly interested in: preventative training for sexual violence and substance abuse.

Grinnell Requests an OCR Investigation of Themselves

Grinnell College has made the unusual and perhaps unprecedented move of requesting that the OCR investigate their handling of sexual assault cases. According to a statement by Grinnell’s president, Raynard Kington, “If Grinnell has fallen short at any point, I want to know about it now, continue to address the problems, and make things right for our students.” Since then it has also been made known that the request came in anticipation of a now-published Huffington Post piece alleging mishandling of three sexual assault cases at Grinnell. According to a letter Kington sent to the campus, “We have specifically invited OCR to review the cases [The Huffington Post] has highlighted to us.” The student and faculty group Dissenting Voices, which believes Grinnell’s sexual assault policies are inadequate, has described the request as an “unprecedented attempt to preemptively control the framing of the issue,” pointing out that six students had already filed complaints with the OCR.

California SB 695 Would Mandate Sexual Violence Prevention Program for High School Students

Federal law (the Campus SaVE Act) already requires colleges and universities to offer sexual assault prevention training to incoming students, but SB 695 introduced last week would require California students to learn about sexual assault violence, and healthy relationships in high school health classes. The bill would further require health classes to teach the affirmative “yes means yes” definition of consent required for the state’s colleges and universities participating in state financial aid programs. Co-author of SB 695, Senator Hannah-Beth Jackson says that it would “give students the skills they may need to navigate difficult situations, and prevent sexual assault before it occurs.”

Substance Abuse Training Must be Reinforced to be Effective

A new study suggests that the effects of  substance abuse training typically administered to college freshmen at or before the start of their college careers tend to wear off over in the course of the year. A study published in the Journal of Consulting and Clinical Psychology found that a month after receiving alcohol education of any kind, 82% of students reported they were drinking less. However, a year later 84% of those same students reported they were drinking as much as they had at before the alcohol education. They also found that alcohol education was particularly effective for inexperienced drinkers and women. These findings suggest that reminding students how to party smart, through text messages, emails, or ongoing training, should be part of an effective prevention program.

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Online Prevention Programs Must Be Accessible
Posted by On Wednesday, February 4, 2015

One compliance issue that deserves more attention is the accessibility of educational programs and activities — including sexual violence prevention programs — to students and employees with disabilities, including visual impairments. Not only is accessibility the subject of multiple higher education lawsuits, it is also the subject of federal agencies’ compliance reviews.

The Department of Education’s Office for Civil Rights enforces Title II of the Americans with Disabilities Act, which covers public colleges and universities (except schools of medicine, dentistry, nursing, and other health-related schools). OCR also enforces Section 504 of the Rehabilitation Act, which covers public and private colleges and universities that receive federal financial assistance.

In its May 26, 2011 “Frequently Asked Questions About the June 29, 2010 Dear Colleague Letter,” the OCR addressed accessibility issues in emerging technology:

6. Does the DCL apply beyond electronic book readers to other forms of emerging technology?

A: Yes. The core principles underlying the DCL — equal opportunity, equal treatment, and the obligation to make modifications to avoid disability-based discrimination — are part of the general nondiscrimination requirements of Section 504 and the ADA. Therefore, all school programs or activities — whether in a “brick and mortar,” online, or other “virtual” context — must be operated in a manner that complies with Federal disability discrimination laws.

Since issuing this guidance, OCR Resolution Agreements have required colleges and universities to meet accessibility standards so persons with qualified disabilities can participate fully in educational programs and activities.

In 2013, OCR reached settlement agreements with South Carolina Technical College System and The Pennsylvania State University. In March of 2014, OCR entered into a Resolution Agreement with the University of Montana to resolve a complaint that the university discriminated against students with disabilities by using inaccessible electronic and information technology (EIT). The UM agreed to:

  • Adopt policies and procedures to demonstrate its commitment to implement EIT accessibility across all disciplines
  • Train faculty and staff on UM’s accessibility policies and procedures
  • Establish grievance procedures for addressing complaints about accessibility barriers
  • Institute procurement procedures to acquire accessible EITs whenever technically feasible
  • Conduct student surveys and accessibility audits to ensure accessibility needs are being met

In December 2014, the OCR entered into agreements to address accessibility issues with Youngstown State University (OCR letter and agreement) and the University of Cincinnati (OCR letter and agreement). In both the Youngstown and UC agreements, OCR defined “accessible” as follows:

“Accessible” means a person with a disability is afforded the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as a person without a disability in an equally effective and equally integrated manner, with substantially equivalent ease of use. A person with a disability must be able to obtain the information as fully, equally, and independently as a person without a disability.

The Youngstown and UC agreements require an EIT Accessibility Policy:

[T]o ensure information provided through the University’s website(s), online learning (or “e-learning”) environment, and course management systems (e.g. Blackboard) (collectively, “electronic and information technologies” or “EIT”), are accessible to students, prospective students, employees, guests, and visitors with disabilities, particularly those with visual, hearing, or manual impairments or who otherwise require the use of assistive technology to access information provided through its EIT . . ..

Under these agreements, once the EIT policies are adopted OCR will conduct regular audits to make sure the universities and third parties continue to meet the agreed-upon standards.

Accessibility for prevention programs is not specifically addressed by the final regulations implementing the Violence Against Women Reauthorization Act of 2013, including the Campus Elimination of Sexual Violence Act (Campus SaVE Act). However, while the Department’s comments are primarily focused on content they do address how the required information will be delivered, stating:

[T]he Department does not have the authority to mandate or prohibit the specific content of mode of delivery for these [prevention] programs or to endorse certain methods of delivery (such as computer based programs) as long as the program’s content meets the definition of “programs to prevent dating violence, domestic violence, sexual assault, and stalking.”

Accessibility standards are evolving to keep pace with emerging technologies, and the Web Content Accessibility Guidelines (WCAG) 2.0, developed through the World Wide Web Consortium (W3C), are currently the favored standard.

So, in addition to checking a prevention program’s content, make sure it also meets the “accessible” standard.

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Weekly Roundup
Posted by On Friday, October 24, 2014

Here’s the latest news in sexual violence prevention efforts.

What Happens to Perpetrators Who Transfer?

Plenty has been made of American colleges and universities’ failure to investigate and hold responsible perpetrators of sexual assault. This Huffington Post piece asks a different question. What’s to stop a perpetrator who is being investigated, or has been held responsible for their actions, from transferring to a different institution, where they will have the opportunity to perpetrate the same crimes all over again? The answer, unfortunately, appears to be nothing. Very few schools forward information about completed or ongoing disciplinary investigations involving students transferring to other institutions, and few if any schools request such information when accepting transfers. The piece notes a number of cases in which students investigated or even expelled for sexual violence, sometimes at multiple schools, were accepted at other institutions where they went on to continue to commit more assaults. While a school cannot prevent a student from withdrawing, or enforce sanctions after they have transferred, activists in the article suggest that, in light of research showing that many perpetrators of sexual assault are serial predators, some sort of system should be implemented to standardize what information about students’ disciplinary records is shared when they transfer from one institution to another.

Could a New Online Tool Increase Reporting?

That’s what the would-be creators of a new online-reporting tool called Callisto believe. The tool, designed by nonprofit company Sexual Health Innovations with input from anti-sexual violence groups, including Know Your IX, Faculty Against Rape, and End Rape on Campus, would allow victim/survivors to report their assaults online. They could then choose to submit the report or not submit, in which case it would be saved it as a time-stamped report. It would also show victim/survivors whether the accused perpetrator had been implicated in other incidents. Sexual Health Innovation’s Founder and Executive Director, Jessica Ladd, says that interviews that went into the tool’s development suggest it could triple reporting. Callisto, which has not yet been fully developed, is currently fundraising on crowdfunding-platform Crowdrise, where it has blown past an initial $10,000 goal. The folks behind Callisto plan to continue fundraising, estimating that development will ultimately cost around $200,000. If you want to donate or learn more, follow the link above.

Federal Sexual Violence Investigations Up 50%

On the topic of increased reporting, the number of federal investigations of schools suspected of mishandling sexual assault cases has increased by 50% since the Education Department’s Office for Civil Rights first began releasing the list of schools being investigated. The list of schools, which includes UC Berkeley, the University of Virginia, and Princeton University, has increased from 59 schools to 89 since May. According to Assistant Education Secretary for Civil Rights Catherine E. Lhamon , “The list is growing partly because we’ve told people we will be there for them. And there’s value in coming to us.” While the growth in the number of federal investigations may represent a positive development in that respect, it also represents a challenge, given the lengthy process of investigating a school’s sexual assault response and determining what steps should be taken to correct any shortcomings. Investigations have been known to take as long as four years from start to finish.

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