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

Silent Sam

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.

 

The Uninvited Speaker On Campus: Successfully Dealing with an Increasing, and Troubling, Trend

Over the past few months, it has become more and more common for high profile racist and neo-Nazi groups to attempt to rent space for rallies and lectures on college campuses.  One of the leaders of the so-called “alt-right” movement, Richard Spencer, recently told the Houston Chronicle that he plans to hold even more rallies on campuses across the country and that his group is currently figuring out “the right model” to hold the speeches. Spencer has also said that he deliberately targets college campuses because of the attention it draws and the size of the audiences, in favor and against, that the events attract.

Emboldened by a court victory that forced Auburn University to allow him to speak on campus, Spencer’s organization contacted the University of Florida with plans to rent space on campus in mid-September.  Despite having a policy that allows for the rental of its facilities by outside groups, UF denied the request, citing the safety risks to the campus and community following the violence in Charlottesville, Virginia.

Spencer and his organization’s representatives have said they will sue for their right to speak at UF, likely to rely on similar arguments made prior to the event at Auburn, such as unlawful viewpoint discrimination by a public entity.  So, what is a college to do if they are approached by Spencer or a similar organization? (Note: These observations are directed at public institutions and may not necessarily reflect the advice HMBR would give to private institutions.)

First, it is important for the college to consider what kind of unaffiliated, non-invited speaker policy is right for them.  If the college views it as an integral part of their mission to be open to the entire community, then the college should enforce a viewpoint neutral approach to those who request rental space for their events.  While this can at times be a challenging position to take, especially when considering the safety and well-being of students who may feel targeted by the speech, a college that views itself as an open forum for all perspectives may find that this approach is right for them.  In addition, it provides the college with the opportunity to hold alternative events to counter the hateful rhetoric and show campus solidarity with targeted groups.

As an alternative, in the wake of recent controversies, some colleges have revised their outside speaker policies.  These colleges, that previously allowed their spaces to be rented by anyone, have decided that the possibility of an uninvited hate group requesting campus space is too dangerous and too damaging to the college community and have placed viewpoint neutral restrictions on access to their facilities.

For example, after a visit from Spencer in December, Texas A&M made its campus off-limits to outside speakers and groups lacking any affiliation with the university.  Under the revised policy, outside speakers must be sponsored by a recognized student organization that assumes “responsibility for any unpaid costs or property damage associated with the event.”

Even with the new policy in place, and still without a faculty or student organization sponsor, Spencer and his organization requested outdoor space at A&M for an event scheduled in September, directly challenging the new policy.  A&M has denied the request, citing the potential for violence on campus and the disruption the event would cause to class schedules and faculty, staff, and student transportation.

In some cases, colleges have sought to keep hate groups off campus by citing the possibility of violent responses to the event.  For example, an event scheduled by Spencer and his organization at Michigan State University was cancelled earlier this week.  MSU cited the tragic violence in Charlottesville and the threat to public safety on campus as their main justifications for cancelling the event.

However, this approach might not rescue the college from the possibility of holding these events.  As Professor Geoffrey R. Stone at the University of Chicago Law School points out, the Supreme Court has recognized the danger of the “heckler’s veto,” stating that “the government’s responsibility in these circumstances is to control those who threaten violence, rather than sacrifice the speaker’s First Amendment rights.” Citing Whitney v. California, Stone writes that “even the fact that speech is likely to result in ‘violence or in destruction of property [that] is not enough to justify its suppression.’”

On the other hand, there are some legal experts who argue that, given the recent events at UVA and elsewhere, colleges may be able to successfully argue that the potential of violence on campus, and the group’s connections to prior violent events, is great enough to justify the rejection of these events.

The possibility of an “alt-right” speaker coming to campus puts a college administrator in a difficult position, but not one without options.  If the college fears the possibility of a hate group renting space on campus and causing a major disruption, then a revision of their policies might be best.  On the other hand, if the university believes that an “open door” policy toward outside speakers is beneficial and in keeping with their mission—and that the remedy of bad speech truly is more speech—then they should enforce their policy in a content neutral way.

Managing the Speakers and the Stage: Best Practices for Free Expression on Campus

Last Friday, as a preamble to their violent marches and rallies in Charlottesville, VA, neo-Nazis descended upon the University of Virginia.  Carrying torches, around 300 individuals marched through the heart of the UVA campus and towards the Rotunda, the venerable center of the university.  While surrounding the statute of Thomas Jefferson, violence broke out and a number of students, faculty, and staff were injured.

The incident is a reminder that colleges need to be prepared.  Some universities find it difficult to balance campus free expression with maintaining the safety and security, physical or otherwise, of their community members.  The following are examples of “Best Practices” that HMBR has identified to serve institutions seeking to manage the stage and the speakers on it.  Note: Although most private colleges have statements affirming free speech rights on their campuses, the following best practices are applicable at public institutions and do not necessarily reflect the guidance we would provide to private institutions.

  • Make Your Commitments Clear

Having a firm free expression statement demonstrates that your institution is committed to free speech, student expression, and an environment that fosters the free exchange of ideas in the pursuit of academic truth.  The statement should acknowledge your institution’s awareness of, and sensitivity to, at-risk communities and communities that could potentially be targeted by controversial speakers. The college should also make clear its commitment to holding students accountable when expression turns into behavior that violates the student code of conduct and endangers the safety of the college community.

  • The Impartial Referee

Restrictions placed upon the content of a speech are almost always struck down by the courts.  It is important that, when it comes to attempting to regulate speech on campus, the college remains viewpoint neutral.  This does not mean that the college cannot set ground rules for groups and individuals invited to speak on campus.  Acting like a referee allows the college to set reasonable restrictions on expression, as long as both sides are held to the same standard.   The areas where the college should always remain content neutral include: time, place, and manner restrictions; access to campus facilities, such as lecture halls or theatres; and event security or facility rental costs.

  • Relationships Can Foster Creative Solutions

Establishing an environment of civility on campus begins with building relationships across a number of college communities.  Campus administrators should have working relationships with student leaders—such as student government associations, student groups associated with political parties, etc.—long before a group invites a controversial speaker to campus.  These relationships can foster alternative, less provocative courses of action that can still allow the student organizations to achieve their legitimate goals while lowering the temperature of the community.

  • Having a Plan

After the incident at UVA, the university president remarked that she was grateful that UVA had an emergency plan, drilled mock disasters in the past, and that they were ready when the time came to put the plan into action.  Beyond an emergency plan, however, the college should have clearly articulated, step-by-step, viewpoint-neutral processes for student organizations to bring speakers onto campus.  Training incoming student leaders in these processes and making sure that they understand the required procedures can save the administration many headaches in the future.  Even if the neo-Nazis at UVA were not an invited group, these practices can be bulwarks against unwanted, but invited, speakers and provide opportunities for alternative arrangements to be proposed.

  • Logistics Are Key

Choosing the venue for the speaker is a significant detail that can sometimes be overlooked.  A large room, away from dormitories, health facilities, or classrooms and with easy access in and out, is often the best option.   It is important to consider potential contingencies as well, such as accommodating larger than expected audiences, giving space for the presence of protestors, and making sure emergency personnel have easy access to the facility should the unthinkable happen.

  • First Duty Should Be Safety

Perhaps the most important part of the administration’s duty to their students, and the college community at large, is to provide a safe learning environment for all.  Sometimes, that environment can be compromised and the college should be prepared.  Law enforcement should be relied upon for security judgments, but it is almost always better to err on the side of protecting the health and safety of the college community.

  • The Antidote to Bad Speech: More Speech

Having legal, effective, and non-disciplinary responses to offensive speech can often be the best answer to these controversial events.  However, it is important not to mischaracterize otherwise protected speech as actionable conduct.  Despite some misgivings about offensive speech, the college is not required to provide an “offense-free” environment.  On the other hand, colleges have successfully organized counter-events when offensive speakers are brought on campus.  Concurrent events or alternative presentations can provide students with opportunities to counter the hateful rhetoric that they oppose, while granting them a forum to express their own opinions as well.

 

As the UVA president said afterwards, the neo-Nazis marching on campus was a nightmare scenario and one, hopefully, most college administrators will never face.  But if a college is committed to creating an environment of free expression for all, there are best practices that the college can employ to ensure free expression is guaranteed in a safe, welcoming, and academically vibrant community.

Out of Bounds? The Reach of NCAA Jurisdiction

The University of Louisville Cardinals and the University of North Carolina Tar Heels – two of the preeminent collegiate basketball programs in this country.  They have collectively appeared in thirty NCAA Tournament Final Fours, hoisting the championship trophy a total of ten times.  Yet, both programs are currently embroiled in high-profile scandals that bear upon issues of the extent of institutional accountability and the reach of NCAA jurisdiction.

Indeed, recently, the NCAA handed down sanctions against the University of Louisville basketball program in response to a staff member’s arrangement of lascivious parties for recruits (e.g. arranging for prostitutes to engage in sexual activities with these teenage boys).  At the University of North Carolina, the charges are of an academic nature – for almost two decades, a number of university student-athletes were enrolled and participated in sham classes in the African and Afro-American Studies Department.

It is hard to argue that one set of infractions is worthy of more leniency than the other.  Both sexual exploitation and academic fraud run counter to the very foundations of the NCAA itself – student well-being and academic integrity – not to mention basic notions of moral decency.  The institutions themselves, moreover, have admitted to the occurrence of the underlying conduct; and yet, they both vehemently refuse to accept the NCAA’s rulings.

The University of Louisville, which sought to avoid the NCAA’s wrath by self-imposing a one-year men’s basketball postseason ban in the wake of the scandalous allegations, railed against the sanctions levied by the NCAA (including suspension of head coach, loss of scholarships and removal of wins) as being “unjust [and] inconceivable”.  Meanwhile, UNC, which, throughout the six-year long investigation, has consistently challenged the NCAA’s involvement in the matter, maintains that the issue at hand is an academic one, outside of the purview of collegiate sports’ governing body.

Instead of accepting blame and showing contrition, then, both institutions have displayed outright defiance at what they view as jurisdictional overreach, a strategy not likely to serve either of them well going forward (just ask Penn State and Syracuse, respectively).  To be sure, the NCAA – charged with policing more than a thousand athletics programs, with limited resources and no subpoena power – faces some inherent challenges in enforcing its rules.  However, when the charges are undisputed and the same go to the foundational principles of collegiate athletics, there should be little resistance to corrective and disciplinary action.

This is even more the case when, as here, institutions voluntary join the organization and commit to abide by and uphold its governing precepts.  North Carolina’s claim that its bogus courses were not limited to student-athletes does not justify exclusion of NCAA jurisdiction.  The fact that another entity – in UNC’s case, its accreditor (the Southern Association of Colleges and Schools) – already issued penalties for the conduct at issue does not render the institution immune from further prosecution by overlapping authorities.  While the NCAA is certainly the governing body of intercollegiate athletics, its mission and countless regulations are replete with criteria and other references related to academics and well-being – without them, the “student-athlete” paradigm would, in effect, fall by the wayside.

Similarly, Louisville’s assessment of the NCAA as lacking power and of its ruling as a “very large mistake” carries little weight.  Institutions and their respective athletics departments will not be incentivized to fully ensure compliance until the sanctions levied properly correspond to the particular transgressions.  Furthermore, the courts, in the absence of blatant due process violations, have typically exhibited a fair amount of deference towards the NCAA when it comes to academic, amateurism and internal disciplinary matters (akin to the discretion afforded its own member schools on faculty tenure and student code matters, for example).  To suggest that the NCAA has no role in either of these two cases, then, is not only legally unsound, but, more importantly, diverts attention away from the underlying wrongdoing and effective approaches to avoiding its future recurrence.

While UNC’s appeal later this month and that of Louisville thereafter stand to shed further light on the full ramifications of these types of incidents, some implications for NCAA colleges and universities are already clear.  First, it behooves schools’ athletics directors, general counsel and presidents (on whom ultimate responsibility for athletics lies), to design, implement and maintain a comprehensive and robust system of compliance and internal controls.  To the extent infractions nonetheless arise, it is in these officials’ institutional interest to timely self-report and self-impose meaningful restrictions (a scholarship here, or a postseason ban there, will not suffice in these kind of cases) to gain the good graces of the NCAA and restore their constituencies’ confidence in the school and its athletics department.  To do otherwise is likely to be nothing more than a fool’s errand, as the NCAA will surely continue to dig in its heels (no pun intended) and defend its turf amidst mounting assaults on its foundational principles.

Affirmative Action Under Review? A Reminder of a College’s Ongoing Responsibilities

Last week, The New York Times published a report suggesting that the U.S. Department of Justice would start investigating intentional race-based discrimination in university admissions. As the story evolved, it became known that the report was actually an internal job posting that did “not reflect a new policy or program or any changes to longstanding DOJ policy,” according to a DOJ spokesperson. Later in the week, The Wall Street Journal reported that the posting sought volunteers for a complaint by an Asian-American group that has accused Harvard University of race bias in admissions.

Whether the report does indeed signal a shift in policy or simply requests volunteers for a specific investigation, the story offers an opportunity for colleges to reconsider when, why, and how they use race in their admissions.  To that end, it is important to provide a sober review of the requirements that colleges must observe for their race-conscious admissions policies.

  • Drawing the Link: Connect Diversity to the College’s Mission with “Concrete and Precise” Goals

In 2016, the Supreme Court in Fisher v. University of Texas at Austin lauded UT for the expression of its goals in developing its race-conscious admissions process.  Justice Kennedy wrote that a college needs to identify the educational values that it seeks to realize through its policy.  These values at UT included: the destruction of racial stereotypes, the promotion of cross-racial understanding, the preparation of the student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry.  In addition, the Court noted UT’s striving for an academic environment that offers a robust exchange of ideas, exposure to different cultures, preparation for a diverse workforce, and the acquisition of competencies required of future leaders.  Colleges that want to consider race in their admissions process need to express similarly thoughtful explanations for their programs.

  • Data! Data! Data! Evidence is Key If Your Admissions Policy is Challenged

In Fisher, the Majority was impressed with UT’s data collection.  In the real world, not every college has the resources or personnel to match UT’s ability to assess their program.  However, colleges need to have data on hand if their policies are ever questioned.  The Court does give some insight into the types of data that are required.  First, hard numbers are good, but numbers do not tell the whole story.  Relying solely on the number of minority students on campus, pre- and post-policy, is not sufficient.  However, nuanced quantitative data, such as measuring the number of minority students across freshman survey courses in specific disciplines, would satisfy this requirement.  Second, the Court gave weight to UT’s use of anecdotal evidence, lauding the university’s interviews, retreats, and student, faculty, and staff surveys.  Third, the Court required that the reassessment of data should be “done with care,” followed by a “reasonable determination” as to whether the stated policy goals are being met.  Colleges should be mindful to compile data, quantitative and qualitative, that they can use to assess the effectiveness of their admissions policy.

  • Diversity is a Journey, Not a Destination: The Ongoing Responsibility Requirement

It is very important to note that if a college finds a workable way to include race into its admissions process, the college’s responsibilities are not fulfilled under the law.  The Fisher court requires ongoing assessments of whether or not the admissions program satisfies the college’s measureable goals.  Justice Kennedy writes that good faith efforts to comply with the law did “not diminish, however, the University’s continuing obligation to satisfy the burden” on colleges.  He adds that the university should engage in “periodic reassessment” of the effectiveness of their admissions program, considering the school’s unique experiences.  It is critical that colleges realize that even if they craft a perfect plan, periodic assessment of that plan is a required element to escape negative judicial scrutiny.  And, importantly, when the policy doesn’t meet their stated objectives, the plan should be reassessed and adjusted.

 

In sum, a university should 1) identity why diversity is a compelling interest at their campus; 2) use data to scrutinize the fairness of its admissions program; and 3) reassess whether the policy is achieving its stated goals and refine their policy as the data demands.

While affirmative action programs might be under more scrutiny in the Trump Administration, colleges and universities can continue to pursue their goal of a diverse student body by following the judicial requirements set forth for these race-conscious admissions policies.

Welcome to the New Higher Ed Law Blog!

Another school year is just around the corner.  Students will return to their dorms later this month.  Professors are busily putting the final touches on their syllabi and finishing off summer writing projects.  Administrators are hurriedly planning budgets, forming strategies, and seeking guidance on what may lie ahead for the new academic year.

Here at the Education Practice at HMBR, we are planning our own new “school year,” of sorts.  We have restarted our Higher Ed Law Blog!  We look forward to using these pages as a way to connect with you and keep you informed.  We plan on bringing you news pieces, hearings announcements, conference recaps, and analytical pieces to keep you up to date on the latest developments in higher education and to give you the advantages you need to thrive in an increasingly competitive marketplace. We also expect to start posting on the connection between higher education and related topics, such as labor, healthcare, and others.

As you read our blog, you can continue to rely on HMBR’s deep knowledge of, and multi-disciplinary approach, to higher education, drawing on our experience working in the private as well as the public sector.  We continue to be passionate about higher education and helping you achieve your academic, business, and institutional goals.

To get started, here is a list of developments that we are monitoring for the upcoming academic year as well as some suggestions about how we can help you navigate these issues:

Title IX Guidance – As has been widely publicized, the U.S. Department of Education is considering whether and, if so, how to revise its guidance on sexual harassment and sexual assault. While we cannot predict exactly what any new guidance will say, we recommend that your institution be ready with a proactive strategy for communicating to your community your values and commitment to compliance and fairness for all parties.  If the Department does issue revised guidance, we will send out a newsletter to you explaining the changes, offering new training sessions, and providing you with a path forward in this latest era of Title IX enforcement.

Academic Freedom and Free Speech – Most experts are predicting another year of high profile free speech controversies on campus. These eruptions can lead to unwanted publicity and disruptive campus upheaval that can negatively impact an institution’s public image and reputation.  However, with the right policies, colleges can continue to be a place where free expression is respected and all community members feel valued.  HMBR is well-equipped to provide training sessions on academic freedom and free speech issues as well as to provide comprehensive reviews of your campus policies and to assist you in writing new policies or handling specific incidents as they occur.

The Janus Case and Labor Issues – The Supreme Court is likely to hear a challenge that could put an end to the practice of public sector unions charging fees to non-members. The impact of the case could greatly reduce public sector unions’ political authority and potentially have a lasting effect on collective bargaining agreements for public institutions.  In addition, the movement to unionize adjunct faculty and graduate students is showing no sign of stopping.  HMBR offers a team of attorneys experienced in representing labor unions and management in a full range of labor and employment matters, providing our clients with well-informed perspectives that address complex legal and regulatory requirements as well as your critical business demands.

Additional Issues – New and Revised Financial Aid Regulations; Accreditation Issues and Program Modifications; Undocumented Students, DACA, and “Sanctuary Campuses”; Student Demographic Changes and Its Impact on Populations and Services; International Student Recruitment and Support; Advances in Education Technology and Delivery Systems

 

HMBR is uniquely positioned on all of these topics and more.  We are true problem-solvers with the experience, knowledge, and ability to provide you with comprehensive legal representation to help you successfully overcome the hurdles your institution faces.  While the new academic year will definitely have its share of challenges, our attorneys routinely assist clients in structuring and executing a wide range of creative solutions that assist colleges and universities in moving forward and achieving their institutional goals.

We look forward to keeping you informed here at the Higher Ed Law Blog.  If you have any questions, concerns, or would like us to post on a topic of interest to you, please feel free to contact us.

Here’s to a successful 2017-2018 Academic Year!