New Resource: 2017 Respondent Litigation Summary Chart

By Debbie Osgood and Jonathan Helwink

HMBR is regularly invited to discuss the latest Title IX trends at trainings, sessions, and workshops with Title IX administrators and higher education leaders. We are often asked: What are the courts doing in student respondent litigation? What steps can we take to lessen our risks in this area?

With these questions in mind, HMBR put together a summary – in chart form – of the key 2017 student respondent court cases across the country.  The 64 cases included are primarily from federal courts (with six appellate court decisions), but we reviewed state level cases as well, and included those that we thought were relevant.  The chart is organized by the federal circuit and includes the name of the case, a brief summary of the facts, a non-exhaustive list of the claims made by the student respondents, and the outcome of the litigation.   In each case, the student was accused of a violation of the college or university’s sexual harassment or sexual misconduct policies.

We hope that the chart is a valuable resource for institutions looking to stay updated on the current environment of student respondent litigation across the nation.

All of the federal cases are up-to-date, as of the time of the publication of the chart.  And, yes, HMBR is already updating the chart for 2018 and will continue to update the chart throughout the year.

For tips on steps to take now to avoid Title IX litigation, read our previous blog post. Please also feel free to directly contact us to discuss specific questions or issues.

To access the complete chart, click here: RespondentLitigationChart

OCR Snapshot – Greater Transparency: OCR Publishes Online List of All Open Cases

By Debbie Osgood and Jonathan Helwink

The website for the U.S. Department of Education, Office for Civil Rights (OCR), now includes a complete list of all open cases under investigation at OCR.  Unlike the widely-cited “Title IX Tracker,” which includes open OCR sexual violence cases at colleges and universities, OCR’s new list includes:  all schools and all of the civil rights laws enforced by OCR.  This means that the list includes cases open against colleges, universities, and elementary and secondary school districts and that the issues include alleged discrimination on the basis of sex, race, national origin, color, disability, or age, and under the Boy Scouts of America Equal Access Act.  You can find the most recent list here.

Here are some interesting statistics from the database so far:

  • Total number of searchable records for all allegations: 8,306
  • Specific types of cases include:
    • Race and National Origin Discrimination: 1,772 (21%)
    • Sex Discrimination: 1,676 (20%)
    • Disability Discrimination: 4,709 (57%)
    • Age Discrimination: 147 (1.7%)
    • Boy Scouts Act: 2 (under 1%)

The list is searchable by type of discrimination and, under each type of discrimination, there are options to look for the cases by specific category. Regarding sex discrimination, for example, you can look for cases relating to athletics or sexual violence.

OCR, which plans to publish updates to the list on the first Wednesday of each month, emphasized that an institution’s inclusion on the list does not mean that it violated a federal anti-discrimination statute. Instead, inclusion means that a complaint was filed with OCR and the agency determined that an investigation should be opened or that the agency has opened a compliance review.

The list will not include cases that are being evaluated by the agency, i.e. cases where OCR has received a complaint, but has not yet made a decision as to whether to open a case, or cases that OCR has closed.

The list, which is also searchable by state or the institution’s name, is organized according to the types of discrimination issues under investigation and not by the number of open investigations at an institution. As a result, a school may appear in search results multiple times if OCR is investigating the school for more than one type of alleged discrimination, even if the allegations stem from a single case. Similarly, a school may appear only once in the search results if OCR is investigating it for only one type of alleged discrimination, even if there are multiple open cases.

New Religious Liberty Guidance Issued by Justice Department: What are the Ramifications for Colleges?

On October 6th, Attorney General Jeff Sessions published guidance issued to all federal administrative agencies and departments interpreting religious liberty protections under federal law.  The memorandum, delivered pursuant to President Trump’s Executive Order in May, interprets existing protections of religious liberty and identifies twenty high-level principles that federal departments and agencies can put into practice to ensure religious freedoms are protected.

Stating that “to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity,” the memorandum lists the twenty principles that it views as paramount to the protection of religious liberty.  The principles begin stating that the freedom of religion is a fundamental right, to act or abstain, held by persons and organizations, that is not shed when participating in a marketplace, public square, or interacting with the government.  In addition, government may not favor or disfavor religious groups and may not interfere with the autonomy of religious organizations.  The memo incorporates the protections of the Religious Freedom and Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964.  Included by the DOJ is a recognition of religious employers’ entitlement to employ only persons who beliefs and conduct are consistent with the employers’ religious beliefs.  Finally, the memo recognizes that a religious organization is entitled to compete on equal footing for federal financial assistance and that the federal government may not require that the religious character of the organization be altered, in any way, to participate in the government program.

In addition, AG Sessions also released an Implementation Memo directing the DOJ to incorporate the interpretative guidance in “litigation strategy and arguments” and “all other aspects of the Department’s work.”  The second memo directs the DOJ’s Office of Legal Policy to review “every Department rulemaking and every agency action” for review under the guidance.  In addition, Attorney’s General are instructed to notify the Department of litigation, operations, and grants that raise novel and material religious liberty issues.

At this point, the Department of Education has not responded to this memo.  It is safe to assume, for the time being, that the Dear College Letter (Sept. 14, 2004) on religious discrimination is still in effect, but changes could be down the road, including a Department of Education implementation memo similar to the one issue by the DOJ.

Even without the implementation memo, there are some indications of how the Trump Administration will look at religious freedom issues on campus and what their approach will be.  Mentioned in an earlier blog post a couple weeks ago, the DOJ filed a Statement of Interest (SOI) in the Northern District of Georgia case, Uzuegbunam v. Preczewski. (See previous blog here.)  The plaintiff in that case, a student at Georgia Gwinnett College, a public institution, sued the school for limiting his evangelizing on campus to two small free speech zones, which he claims encompasses 0.0015% of the college’s campus.  When he requested approval to preach, the college informed him that its “disorderly conduct policy” forbid anyone from engaging in “fire and brimstone” speech.  The student sued the college for violating his First and Fourteenth Amendment rights.

The case marries AG Sessions two priorities of the past couple weeks, campus free speech and religious liberty, (See our blog post on the former issue here) and signals DOJ’s renewed attention to this issue.  Clearly, AG Sessions has taken a keen interest in religious freedom issues, but whether the SOI means heightened scrutiny for religious freedom issues on campus is yet to be seen, but early indications make additional DOJ attention likely.  HMBR will continue to monitor these developments as they happen on this issue and will inform you when new information comes available.

Interim Title IX Guidance Released: Making Sense of New Interpretations and Ongoing Responsibilities

With Jonathan Helwink

On Friday, the Department of Education released a “Q&A on Campus Sexual Misconduct” along with a letter from Acting Assistant Secretary of the Office for Civil Rights, Candice Jackson withdrawing the Department’s 2011 “Dear Colleague Letter on Sexual Violence” and the 2014 “Q&A on Title IX and Sexual Violence.”  This new Q&A is intended to set forth the Department’s “current expectations of schools” in the “interim” while formal rules are crafted after a notice and comment period.  The Department indicated that it would rely on this interim Q&A along with the Department’s 2001 “Revised Sexual Harassment Guidance” and 2006 “Dear Colleague Letter on Sexual Harassment,” affirming the 2001 guidance.   The interim Q&A provides a helpful, consolidated description of the requirements of the Clery Act, the Violence against Women Act, and Title IX in outlining the Department’s expectations for schools.  The following are the key changes, along with explanations, that HMBR attorneys have noticed in the interim Q&A.

  • Standard of Proof – Colleges are no longer required by federal Title IX policy to use the preponderance standard of evidence and may use either the preponderance or the higher “clear and convincing” evidence standard. The Department – in a footnote that is bound to be highly debated in the months to come – Footnote 19 – indicated that schools should use a standard in sexual misconduct cases that is consistent with the standard the school applies in other student misconduct cases.  Relying on a case involving Brandeis University, the Department stated that using “special procedures” in sexual misconduct cases “suggests a discriminatory purpose and should be avoided.”  In our view, schools that use different standards for sexual misconduct and for other types of misconduct may still be able to use those standards if they have legitimate, non-discriminatory justifications for the use of different standards (for example, that the applicable state law requires the use of the preponderance standard in sexual misconduct cases).  And, importantly, federal courts in other cases have specifically ruled that having procedures that may favor victims does not equate to gender discrimination.
  • Due Process – The interim Q&A emphasizes that any rights or opportunities made available to one party should be made available to the other party, including having an attorney present and participating (consistent with the Clery Act) and the right to cross-examine parties and witnesses. Respondents must be provided adequate written notice and the opportunity for meaningful participation in any proceedings; these are fundamental due process rights that many federal courts have already insisted be afforded to respondents.  The interim Q&A continues OCR’s approval of the use of a single investigator model, but now considers “gag orders” inequitable.  Findings of fact may be made with or without a hearing.  Training materials or investigative techniques must be objective and impartial.
  • Time Frames – The interim Q&A removes the sixty-day timeline from previous guidance and replaces it with a requirement to conduct “fair, impartial investigation[s] in a timely manner.”
  • Off Campus – Citing to the U.S. Supreme Court’s decision in Davis v. Monroe City Board of Education, the guidance states that a “university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity” of the college.
  • Interim Measures – The document emphasizes that services should be available to both the complainant and the respondent. In rescinding the 2014 Q&A, the guidance removes the previous “minimize the burden on the complainant” language and highlights that schools should make “every effort to avoid depriving any student of her or his education.”
  • Informal Resolution and Mediation – Colleges may now facilitate informal resolution of Title IX complaints, including mediation, if all parties agree to participate in the complaint’s voluntary resolution, thus opening the way for the use of “restorative justice” techniques for sexual violence cases.
  • Right of Appeal – Under the interim guidance, a school may choose to allow appeals regarding responsibility or sanctions to both parties or to the respondent only.
  • Free Speech – The interim Q&A directs schools to formulate, interpret and apply their Title IX rules consistent with the rights of students and faculty, including court precedents interpreting the concept of free speech.
  • And More? – There are still a lot of questions about the interim guidance, including: Has the Department softened the previously-understood requirement that schools must conduct an investigation in all cases of reported sexual violence? The interim guidance states that where a school knows, or reasonably should know, of an incident of sexual misconduct, “the school must take steps to understand what occurred and to respond appropriately.”  Compare this language to the previous language requiring schools “to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”  In addition, the accompanying letter from OCR’s Assistant Secretary criticized that the former guidance “forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints.”  It is unclear whether the Department is suggesting that schools may defer to criminal proceedings without conducting their own Title IX investigations in sexual violence cases.

Reactions to the temporary guidance have been swift.  Victim advocates view the guidance as sending the wrong message to survivors, making them less comfortable reporting sexual violence incidents.  Advocates for accused students cheered the directives, applauding the Department for taking their concerns over due process violations seriously.

Despite the reactions, there is still much to be worked out and decided.  While potentially foreshadowing what will eventually become permanent, the Q&A is only interim guidance with a notice and comment period still to come.  At HMBR, we will continue to keep you updated on developments and, as always, we are ready to advise you on how this interim guidance affects your campus policies and procedures.

New Guidance Looks Likely to Adopt ‘Clear and Convincing’ Standard

The Wall Street Journal reported on Wednesday this week that the Department of Education will issue interim guidance on handling sexual assault investigations on college campuses in the next week or two.  Despite not reporting all of what the interim guidance will include, the Journal did report on one of the expected most-eagerly anticipated and controversial changes.

According to the Journal, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” evidentiary standard of proof in Title IX proceedings on college campuses.  The inclusion of the new standard would replace the lower “preponderance of evidence” standard currently required by the Department.  Generally, the clear and convincing evidentiary standard means that a party must prove that its accusation is substantially more likely than not to be true.  The preponderance standard is understood to mean that a plaintiff’s accusation is more likely than not to be true, in other words, that 51% of the evidence favors the plaintiff’s outcome.  Importantly, the article does not suggest that schools will be required to adopt this higher standard, which would leave schools in states that have state laws requiring the use of the preponderance standard free to continue using that standard.

As of publishing this post, the Department of Education has not confirmed or denied the Journal report.  It is also unclear how, exactly, this evidentiary change could affect campus policies and procedures across the country.  However, HMBR is closely monitoring these develops and will bring you the best and most experienced reaction and guidance when the revised Department guidance is issued.

Six Takeaways from Secretary DeVos’ Title IX Speech

 

With Jonathan Helwink

On September 7th, Secretary of Education Betsy DeVos delivered an address regarding the Department’s revised approach to Title IX enforcement.  Announcing the goal of “getting it right” on Title IX, DeVos indicated a new phase of Title IX enforcement.  Here are six key takeaways from her remarks:

1.      Continued Commitment to Enforcing Title IX.  The Secretary stated that the Department is committed to continuing to enforce the obligations of colleges and universities under Title IX to prevent and address sexual misconduct on their campuses.   But she indicated that the Department would take a more collaborative and less punitive approach with schools in enforcing the law.

2.      No Immediate Change in Title IX Policy.  The Secretary did not announce any immediate change – rescission or modification – to existing Title IX (or VAWA) guidance.  So the Obama Administration’s Title IX policy guidance, including the requirement to use the preponderance of the evidence standard for evaluating sexual misconduct allegations, remains in effect.

3.      Opportunity for Public Input.  Stating that “the era of ‘rule by letter’ is over,” DeVos announced a “notice and comment” period to replace current Title IX guidance. No details were given as to the timing or format of this process.  In general, notice and comment periods range from thirty to sixty days, but agencies have the discretion to extend the period to 6 months or more for “complex rulemaking”, which may be appropriate for Title IX.

4.      Heighted Emphasis on Due Process.  As expected, the Secretary expressed grave concern with respect to the procedural protections afforded to accused students in the disciplinary process.  She gave a number of specific signals as to the Department’s views on the procedural protections that should be afforded in the process, including:

– Not requiring the use of the “lowest standard of evidence”

– Allowing attorneys to play a greater, more active role in the process

– Starting with a presumption of innocence (note use of criminal law terminology)

– No system “bias” toward finding a student responsible for sexual misconduct

– Adequate notice of specific allegations

– Requiring evidence to be shown to all parties (already required by VAWA)

– Allowing witnesses to be cross-examined

– Providing a right to appeal in all instances

– Not imposing “gag orders” prohibiting parties from talking to others about the process

Many of these due process protections echo themes heard from the Foundational for Individual Rights in Education in the report it issued earlier this week, and heard previously in recommendations (cited by the Secretary in her speech) of the ABA, the American College of Trial Attorneys, and  professors from the law schools at Harvard and Pennsylvania.

5.      Heightened Protection for Free Speech.  Secretary DeVos took aim at university “harassment codes” and what she called “ambiguous and incredibly broad definitions of assault and harassment” that, in her view, punish students and faculty “simply for speaking their minds or teaching their classes.”  She suggested that there needs to be more precision in the definition of sexual misconduct and harassment, so that schools do not “trample speech rights.”

6.      Outsourcing Title IX Adjudicatory Responsibilities?  While referring to the importance of public feedback on the replacement guidance, DeVos signaled interest in exploring “all alternatives.” Interestingly, the Secretary suggested that one alternative approach would be “to allow educators focus on what they do best: educate” and give the adjudication of sexual misconduct to professionals outside of the university setting. The Secretary opined that college and university administrators do not have the necessary legal expertise and training to adjudicate sexual misconduct cases and given this “competency gap,” they should instead draw upon others in this area.  She stated, “Get out of the way and let the professionals do their jobs. Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.”

The bottom line is that institutions need to stay tuned for further developments in this area. HMBR will continue to monitor developments as they happen and will inform you when new information comes available.

For advice on steps that schools can take now to be ready for changes in federal policy and to position themselves to avoid Title IX litigation, see the blog posted earlier this week on “Smart Steps to Take Now to Avoid Title IX Litigation.”

When the College Responds to a Crisis: Hurricane Season and Preparing for the Next Disaster

Written with Dennis Cariello.

As the U.S. prepares for another hurricane later this week and as residents of Houston begin the long process of recovery, colleges and universities have found themselves in a most difficult situation.  While managing the hurricane’s effects on campus and attempting to account for all of the students affected, college administrators are working diligently to serve their communities, on and off campus, the best they can through this crisis.

During the storm in Texas, Rice University, Texas Southern University, the University of Houston, the Galveston and Houston Community Colleges, and many other institutions closed.  Some, like UH, continued running on a limited basis, keeping some dorms and dining halls open for the stranded students.  Their work, in many ways, was just beginning.  With this work in mind, the U.S. Department of Education has set up a hotline and email address for school leaders needing information or temporary relief regarding Department-based administrative requirements.

For those outside Houston and other affected areas, the storms and flooding are reminders that preparing your institution for a catastrophic event, of severe weather or otherwise, can be critical to successfully navigating through a crisis.  To that end, the U.S. Department of Education has a number of resources available for colleges to guide them through planning for the unthinkable and HMBR is uniquely situated to help your institution write a crisis management policy or revise your current policy. Here is a brief list of some Departmental resources:

  • Ready Campus – An array of links to resources for planning, preparedness, response, and training. A great place to start when rethinking your disaster plan.
  • Practical Information on Crisis Planning Brochure — From the U.S. Department of Education, the link is a thorough guide to developing, reviewing, and updating a school’s crisis plan that provides advice through the process and examples of best practices.
  • Guide for Developing High-Quality Emergency Operations Plans for Institutions of Higher Education – Similar to Item #2 on this list, but specifically geared towards higher education institutions. Also contains information on key topics of interest to colleges such as Clery Act and FERPA compliance, campus law enforcement, and campus climate studies.
  • Federal Student Aid Natural Disaster Information – Link from the Federal Student Aid office containing information for students, borrowers, and schools who have been impacted by a major natural disaster. Also includes link to contact information for departmental resources.
  • Dear Colleague Letter from August 23, 2010 – Letter provides information regarding the impact of disasters on Title IV student assistance programs and provides regulatory relief to students, institutions, lenders, guaranty agencies, and servicers in administering federal student financial aid programs authorized under Title IV. See this document for additional info on disasters and Title IV programs.

Finally, here are a few concerns that HMBR thinks are important for college administrations to consider, and that the Department of Education may want to discuss, when facing a natural disaster:

  • If you decide to close your institution, consider how long you will remain closed and have a plan in place to re-open as efficiently as possible to hit the ground running;
  • Determine the effects of the potential closing on your academic year as well as how, and when, you expect to make up for the lost time;
  • Consider how the potential closing will affect your ability to report any data to the Department of Education;
  • Consider how the closing will impact your financial aid disbursement schedule and the effects that could have on your student population, including whether your will need to use your professional judgment to zero out Expected Family Contributions (EFCs) for more students;
  • Consider whether the closure affects any school or program deadlines.

Smart Steps to Take Now to Avoid Title IX Litigation

For those of us who are fans of Game of Thrones, we know that “Winter is Coming.”  The same can be said of federal Title IX policy:  “Change is Coming.”  But as we await further direction from the Trump Administration, change has already arrived in the surge of Title IX judicial decisions issued against institutions across the country. There are key steps that colleges and universities can and should take now to bolster their Title IX compliance programs. These steps should help lessen the risks of being sued by complainants and accused students in federal or state court and/or in discrimination complaints to the U.S. Department of Education’s Office for Civil Rights (OCR). These steps will put institutions in a better position to successfully defeat any challenges, regardless of the course taken in Title IX policy by the federal government in the future.

Reaffirm Your Commitment to Title IX Compliance and to Fairness – Regardless of how federal Title IX policy changes in the future, the obligation to address sexual violence is not going away on your campus. Title IX compliance is now part of the education package that students and their parents expect from colleges and universities. The commitment of your institution’s top leadership to Title IX compliance continues to be critical. Leadership should reaffirm that your institution will not tolerate sexual harassment and violence and that it will “promptly and equitably” resolve complaints in a fair manner that protects the safety and welfare of students and the community.

Conduct a “Due Process Scan” – Think of this as like an MRI scan looking to detect due process-related risks in your institution’s procedures and practices.  With increasing frequency and volume, the courts (and OCR) have been drumming a “due process” beat specifying that, while sexual misconduct proceedings do not need to have all the bells and whistles of criminal trials, the process must be fair for all of the parties given the high stakes involved. Schools should review their procedures and practices and adjust them as needed in light of the heightened emphasis on procedural protections.

Examine your procedures from the point of view of the accused student:  are you providing adequate notice of the charges and a meaningful opportunity to be heard in the disciplinary process?  Courts are increasingly willing to weigh in on whether the procedural balance struck by a particular university is fair.  Just in the past few weeks, federal courts have issued injunctions to stop two universities from suspending the accused students because of due process concerns (respondent was denied the opportunity to be heard when a panel failed to ask questions submitted by the respondent and redacted portions of his response; respondent was denied adequate notice when informed of a new theory of culpability only a week before the hearing, which the court said was not enough time for the respondent to prepare a defense, and was not allowed to challenge testimony of three complainant’s witnesses made via written statement only).  Doe v. Pa. State University (M.D. Pa. Aug. 10, 2017) and Nokes v. Miami University (S.D. Ohio., Aug. 25, 2017). This spring, a federal court ordered another university to allow an accused student to take his final exams, following concerns of inadequate notice and an unfair advantage to the university because the student was “essentially on his own” during the process, unable to talk with his lawyer or advisor until breaks in the hearing process.  The court rejected the university’s asserted rationale that the process was “educational” and not “punitive.”  Per the court, “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.” (Doe v. Univ. of Notre Dame, N.D. Ind. May 8, 2017)

Avoid Bias – My dad would call this one a “no brainer.”  But as litigation involving claims of gender bias against colleges and universities continues to rise, it cannot be overemphasized that the determination of whether a student has violated your school’s sexual misconduct process must be made in an impartial manner.  Courts have looked for statements or affiliations by members of the disciplinary tribunal or by university offices, and patterns of decision making that tend to show the influence of the gender.  A federal lawsuit filed by an accused student against Oberlin College this summer cited as evidence of bias a social media post by the administrator charged with serving as the appeals officer in the sexual assault case. The administrator had retweeted the following tweet by a group called “End Rape on Campus:”  “To survivors everywhere, we believe you.”  Decision makers must be impartial.

Also, review your policies, training materials and outreach publications to be sure they are gender-neutral, fair and balanced.  Also, be sure to train your investigators and adjudicators to interpret evidence in a fair, impartial and accurate manner. The lawsuit against Oberlin criticized that the College did not require that the annual training of its Title IX team include training on “how to conduct impartial fact-finding proceedings.”

Manage Expectations – With the rise in student activism on sexual violence and other issues, campuses need to be clear with students about what their institution’s Title IX process is and what it is not.  The process should be a fair, impartial legal analysis of whether the facts in a particular case support that a student has violated the institution’s sexual misconduct policy.

It is not a vehicle for educational institutions to side either with “survivors” or “accused students” as a matter of policy or politics.  Keep in mind the scolding by a federal judge of Brown University students who inundated the court with emails to influence the outcome in a particular case against an accused student, reminding the students of “basic civics” that the court is “an independent body” and must make its decisions “based solely on the evidence before it.  It cannot be swayed by emotion or public opinion.”  Doe v. Brown University (D.R.I. Sept. 28, 2016).  Students should understand that the same is true for the disciplinary process at your institution.

Pay Attention to the Title IX Fundamentals and Share Lessons Learned – As we enter a period in which we are likely to see some re-calibration of federal Title IX policy, it is important to remember the bedrock fundamentals of Title IX compliance.  The Department has consistently required that, upon notice of possible sexual harassment, institutions must take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end the sexual harassment, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects. The Title IX regulations also specifically require:  dissemination of a non-discrimination statement, designation and public contact information for a Title IX Coordinator, and prompt and equitable procedures for resolving complaints of sex discrimination, which include sexual harassment and sexual violence.[1]

Much of the ongoing and coming debate over changes to Title IX policy concerns whether to retain or modify the “requirements” and “recommendations” in the Obama-era Title IX guidance, including the 2011 Dear Colleague Letter on Sexual Violence and the 2014 Frequently Asked Questions document.[2]  In my view as a private attorney and former OCR official, colleges, universities and federal government officials have learned a lot about effective policies, procedures and practices in this area since 2011. Think of the advances made by schools in formalizing and publicizing their procedures, conducting thorough investigations, training staff, improving case documentation, providing resources to the parties, and assessing campus climates.  We should look to the lessons learned by colleges and universities, and those discussed in the 20+ major OCR/DOJ Title IX cases issued since the 2011 guidance, as we move forward to the next era in Title IX compliance.

Prepare for Change – In addition to the steps above, now is the time to think through the logistics of the process your school will follow to make any adjustments to your policies and procedures that may be needed if the Department rescinds or modifies all or part of the policy guidance issued under the Obama Administration.

Most experts believe that the Department will increase the procedural protections required to be afforded to the parties in sexual misconduct cases, particularly for the accused student.  And many believe that the preponderance of the evidence standard will be changed in some way – either by imposing a higher standard (“clear and convincing”) or letting states and schools choose the standard they want to use.  Schools need to be ready to adjust their policies, procedures and practices to comply with changes in federal law and to anticipate the process they will use to make changes.  Additional questions include: Who needs to be included in the process of your institution to decide whether to make changes and, if so, what changes to make?  What is the procedure your institution needs to follow to revise policies and procedures? Will additional training of employees and students be needed?

We offer the above recommendations as admittedly very broad brush strokes for bolstering your Title IX compliance program.  Of course, please feel free to contact us if we can assist you in implementing any or all of these steps on your campus.

[1] The Department’s 2001 Sexual Harassment Guidance (which, unlike the Obama guidance, was issued after public notice and consistent) specifically cited the following as required elements of prompt and equitable grievance procedures:

  • Notice to students and employees of the procedure, including where complaints may be filed;
  • Application of the procedure to complaints alleging harassment carried out by employees, other students, or third parties;
  • Adequate, reliable and impartial investigation of complaints, including the opportunity to present witnesses and other evidence;
  • Designated and reasonably prompt timeframes for the major stages of the complaint process;
  • Notice to the parties of the outcome of the complaint, and
  • An assurance will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

[2] Of course, the VAWA regulations also added specific requirements relating to training, outreach and grievance policy and procedures, many of which were based on OCR’s policy recommendations, and these will need to be part of the conversation as well.

Confronting the Past, Preparing for the Future: Best Practices for Colleges with Controversial Statues on Campus

Written with Debbie Osgood

Over the past few weeks, colleges across the country have been confronting an issue that vexes even the best academic: the past.  Colleges from Texas to North Carolina are grappling with the issue of monuments and statues that, to some, glorify a racist past in American history.  While there are convincing arguments on both sides—leave the statues up, take the statues down—college administrators must deal with this issue with sensitivity, attention, and nuance.

One of the authors of this post is connected to this issue more than most because he is not only an attorney, but also a practicing historian, who studies and regularly lectures on the American Civil War.  After looking at the issues, and drawing upon our collective experience, here is what HMBR believes are the best practices colleges can employ to deal with this issue:

  • Taking a Systematic Approach to the Past

Studying the story behind the statue can provide historical context to the statue’s meaning.  Institutions that have investigated why their statues were originally commissioned, who commissioned the statue, and what their intent was, have found that the additional historical information has contributed to the college community’s understanding of the statue and helped better place it in the proper context.

  • What Did the Statue Represent When it was Erected? What Does It Mean Now?

Beyond studying the original intent behind the statue, it is important to study the “life” of the object.  As important as the first meaning behind the statue is, it is equally important to place the statue in its proper, lifelong context.  This analysis can lead to interesting conclusions about what connections exist between the college’s culture, the students, faculty, and community who live and study in the presence of the object, and how their experiences have evolved over time.

  • Concerns over Vandalism and Security

Recently, colleges confronting this issue have encountered the very real concerns of vandalism and exorbitant security costs.  Many of these colleges have decided that the costs are too high and have decided to sequester the statues elsewhere, such as in the library archives or in storage.  While some colleges have chosen to cover statues to protect them from damage, some have reached out to off-campus law enforcement for support.  Colleges are finding, however, that they cannot always rely on outside partners for assistance on these issues.  If the college cannot reasonably bear the cost of securing the object, protective measures, such as fences or cameras, can often be employed in the short-term while policy is being formulated.

  • Review State Statutes on Statues

Many states, especially in southern states, have passed legislation restricting whether public institutions can remove statues from their grounds.  Colleges need to keep themselves informed on these laws and whether amendments or changes are being made to address contemporary crises.  These laws can create additional levels of notice and approval, and potential liability, no matter what institutions decide to do.

  • Consider Possible Constitutional Implications

Public colleges will want to carefully consider any constitutional implications of their actions related to confederate monuments.  Are confederate symbols, including the flag and monuments, a form of free speech protected by the First Amendment of the U.S. Constitution? Or are they a form of government speech and not subject to the Free Speech Clause?  In its recent case involving a band named “the Slants”, the U.S. Supreme Court cited the posters produced by the federal government during World War II to promote the war effort as an example of government speech that is not required to be viewpoint neutral.  Matal v. Tam (June 19, 2017).  Are confederate monuments akin to war posters?  The context of the college’s relationship to the monument at issue (is it a state-owned monument? Is it on state land?) will be critical in evaluating the constitutional considerations.

  • The Statue and an Institution’s Values

Once the review of the history and context is complete, the college should consider whether the statue, and the way the university has come to understand it, comports with the institution’s values.  While it is easy to see why statues honoring Confederate statues could be offensive to some students and community members, and, on the other hand, why the unceremonious removal or damaging of the statues could be offensive as well, the unique way that your institution decides to treat the statue can provide context, understanding, and meaning beyond what advocates from either side would present.

 

While this issue can bitterly divide a college campus, it does not have to.  With the proper context, study, and attention, a college can navigate through this politically sensitive issue without dividing their institution’s members, while also paying respect to the American past and the unique identities of their students, faculty, and college community.

Upholding Title IX Principles in Collegiate Athletics

Written with Debbie Osgood [1]

Black and White Soccer Ball on Green Grass Land during Daytime

Title IX of the Educational Amendments of 1972 prohibits sex discrimination, including sexual harassment and sexual violence, in educational institutions that receive federal financial assistance.  Complementing Title IX at the federal level are the Clery Act and the Violence Against Women Act, both of which seek to protect individuals against discriminatory and violent behavior on the basis of sex.  Different state statutes and institutional policies offer further safeguards within the higher education landscape, and now, new NCAA regulations have been added to the fold for those who are members of the intercollegiate sports’ governing body.  Given our backgrounds at the U.S. Department of Education and the NCAA, the values of gender equity and intercollegiate sports resonate strongly with us and with the other attorneys in the Education Group at Hogan Marren Babbo & Rose, and we would thus welcome the opportunity to assist in furthering those values within your campus

There is no doubt that Title IX has been responsible for ushering in a new era of educational benefits to college campuses across the country, particularly in the area of athletics, where female participation has skyrocketed over the last few decades.  By the same token, Title IX has pushed colleges and universities to take greater responsibility in responding to reports of sexual harassment and violence incidents on campus, including within the athletics department.  Indeed, such incidents often tend to get magnified when athletics is involved, given the visibility of student-athletes and athletics personnel, and the high stakes that usually accompany such enterprise.  One example is the recent Baylor University sexual assault scandal that led to the ouster or resignation of the University President, Athletics Director, Head Football Coach, Title IX Coordinator, and others, as well as to multiple lawsuits and unfavorable PR coverage.  This episode  illustrates the magnitude of the adverse effects that such incidents can bring upon an institution and, more importantly, the constituencies that it serves.

It is for that reason, as well as the alignment of Title IX principles with NCAA values, that the collegiate sports authority – although not itself directly covered by Title IX – has taken on a more active approach towards better positioning its 1100-plus members to effectively address sexual harassment and violence on campus.  The NCAA has not been shy to use its bully pulpit to seek change on issues that touch upon its mission, such as confederate flag sponsorship, Native American inspired mascots, and transgender restroom usage, and this area is no exception.  Since 2012, the NCAA has spearheaded or sponsored commissions, task forces, summits, and the production of a series of materials and resources, all designed to foster the appropriate treatment of sexual harassment and violence within athletics departments and the broader campus community.[2]

The latest articulation of this approach is the NCAA Board of Governors Policy on Campus Violence, adopted earlier this month as a reaffirmation of its commitment to advance a positive athletics culture that revolves around respect and empathy for all.[3]  Under the Policy, each University President, Director of Athletics and Title IX Coordinator must, on or before May 15, 2018 (and each year thereafter) certify that:

  • The athletics department is knowledgeable about and compliant with campus policies and processes regarding sexual violence prevention,
  • Those policies and processes, and the name and contact information for the Title IX Coordinator, are available within the athletics department, and
  • All student-athletes, coaches and staff have been trained on sexual violence prevention.

While the Policy is silent on penalties or other implications of non-compliance, the failure to abide by this guidance, at the very least, increases the likelihood of running afoul of the law, with all attendant consequences thereto.

And, even though some commentators have criticized the new NCAA rules as simply reiterating existing federal requirements, it is clear that the new rules seek to encourage college athletics to take a more prominent role in preventing and addressing sexual violence.  In announcing its new Policy, the NCAA stated, as one overarching principle for the new rules, that intercollegiate athletics programs should “utilize their platform to serve as leaders on campus through engagement in and collaboration on efforts to support campus-wide sexual violence prevention initiatives”.

It is clear that the NCAA is sending a strong message that, given their unique role on school campuses, athletics departments must not only make sure their “houses” are clean, but also must help keep the entire university neighborhood clean  To effectively discharge these new NCAA obligations, then, it is incumbent upon athletics departments to establish the “tone at the top”, the level of inter-campus collaboration, and the availability of resources necessary to ensure compliance.  With extensive experience and expertise in both collegiate athletics and sexual harassment and violence prevention, the Education Group at Hogan Marren Babbo & Rose is well positioned to serve as one such resource to colleges and universities, and their athletics departments.  In this constantly changing legal environment, our Group offers a plethora of effective and targeted services, including the performance of compliance assessments and audits of institution/department sexual violence programs, the development and revision of institution/department policies and procedures consistent with governing law and regulation, and the provision of education and training to all applicable constituencies on campus.

[1] Debbie Osgood and Jay Rosselló are partners in the law firm of Hogan Marren Babbo & Rose (“HMBR”).  Ms. Osgood previously served as National Enforcement Director at the U.S. Department of Education, Office for Civil Rights, and Mr. Rosselló as Director of Legal Affairs and Enterprise Risk, Ethics & Compliance at the National Collegiate Athletic Association.  HMBR’s roster also includes the Department’s former General Counsel, Charlie Rose, and former Deputy General Counsel for Postsecondary Education and Regulatory Services, Dennis Cariello.

[2] See http://www.ncaa.org/sport-science-institute/sexual-assault-and-interpersonal-violence, including the sexual violence prevention tool kit contained therein.

[3] See http://www.ncaa.org/sport-science-institute/topics/ncaa-board-governors-policy-campus-sexual-violence.