Higher Education Law Report

As reported last week, The White House Task Force To Protect Students From Sexual Assault issued its first report.  Simultaneously, OCR issued Q&As on Title IX obligations and related documents to help guide institutions and to reinforce the government’s interest in pushing colleges and universities to better respond to campus sexual assaults.  The effort to protect students on college and university campuses from sexual assaults is unquestionably a good thing, although one might question some of the government’s tactics.  Towards the end of last week, the Department of Education turned the heat up on institutions.  On May 1, DOE made public a list of 55 higher education institutions currently the subject of OCR Title IX investigations, both complaint and compliance driven.  Bear in mind that these are simply situations in which a complaint has been filed, whether warranted or not, or the institution is the subject of a compliance review.  While the DOE’s press release stated that an “appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law,” it seems that this latest tactic is intended as the equivalent of a “perp walk” designed to put pressure on institutions by making them look bad, although they have not been found in violation of the law in any way.  Although OCR noted that the list will be updated regularly, thus sending a message well beyond the 55 institutions named, it is notable that OCR did not indicate any intention to publicize, in a similar manner, those institutions cleared of any allegations of misconduct.  This current wave of action to attack sexual assault has not been limited to the federal government.  Last week the Connecticut House and Senate both passed legislation dealing with campus sexual assaults.  Under this legislation, both public and private colleges and universities in Connecticut will be required, among other things, to: 

• provide free counseling services to students who have been sexually assaulted, whether on or off campus,
• provide annual prevention and awareness programs for students and employees,
• provide concise written notice of a student’s right to seek disciplinary action in the event of a sexual assault and of the availability of any free healthcare and counseling related to an assault,
• enter into an agreement with at least one community-based sexual assault crisis service and a domestic violence agency to provide free help to students, and
• provide legislators on an annual basis with the institution’s sexual assault policies, the number and type of risk reduction programs in place, the number of incidents of sexual assault, domestic violence and stalking, the number of disciplinary cases related to sexual assaults and their outcomes. 

Time will tell if other states will follow suit with their own unique brand of campus sexual assault legislative oversight.  In the meantime, institutions will need to prepare for the possible negative public image impact of OCR’s decision to publicize any complaint or compliance review, regardless of outcome or merit.

Today the White House issued the “first” report from its task force on sexual assault.  The Report provides a number of recommendations for colleges and universities and is a “must read” for any administrator charged with any aspect of Title IX compliance. Among the items addressed in the Report are the following:

• Campus Climate Surveys.  The Report begins by noting that the first step in solving a problem is to identify it.  To assist institutions in identifying problems on their campuses, the Report provides a “toolkit" for conducting a Campus Climate Survey.  The Report suggests that an institution that is “serious” about addressing the problem of sexual assaults will voluntarily conduct a survey.  It also indicates that the government will be exploring legislative or administrative options to require schools to conduct a survey in 2016.
• Engaging Men.  The Report presses institutions to engage men as “allies” in the cause to combat campus sexual assaults, noting: “Most men are not perpetrators – and when we empower men to step in when someone’s in trouble, they become an important part of the solution.”  Towards this end, the Report offers information on “Bystander-Focused Prevention of Sexual Violence.”
• Effectively Responding.  A major component of the Report is its emphasis on institutions’ need to effectively respond to complaints of sexual assault by students.  The Report discusses a host of issues related to policy language and investigation and hearing procedures.  (The Report is detailed in this regard and contains far more than can be covered in a single blog post.  Future posts will explore specific topics in more detail.) 

One of the most intriguing aspects of the Report is its encouragement for institutions to have a confidential resource with whom victims can talk and from whom they can receive advice and support that does not require the commencement of an investigation, if the victim is not ready to take that step.   Until this point, the issue of confidential campus resources (meaning whether such confidential resources are permissible and, if so, who could be designated as a confidential resource) has been a subject of much speculation and confusion.  According to the Report, institutions should “make it clear up front, who on campus can maintain a victim’s confidence and who can’t – so a victim can make an informed decision about where best to turn.”  The Report provides institutions with sample language for a confidentiality protocol. Interestingly, this sample language indicates that institutions are permitted to have “confidential” advocates (including non-professionals) who, if contacted, would keep the Title IX Coordinator informed of the general extent and nature of the incident, but would provide no personally identifying information to the institution and would not trigger an investigation.  These individuals are distinguished from “responsible employees” who have a different reporting role and whose receipt of a report will generally trigger an investigation.  Issued with the Report is an extensive “Q&A" from OCR, which provides more detail as a follow up to its April 4, 2011 “Dear Colleague Letter” and also addresses this use of confidential advocates among many other issues). The Report also includes a Checklist for Campus Sexual Misconduct Policies to assist institutions in drafting and/or reevaluating their own misconduct policies.  

• Transparency.  The Report affirms the government’s commitment to making enforcement efforts more transparent.  Towards that end, it has created a new website, NotAlone.gov to “give students a roadmap for filing a complaint if they think their school has not lived up to its obligations.”  It also notes that OCR is strengthening its enforcement procedures by instituting time limits on negotiating voluntary resolution agreements, making it clear that institutions should provide victims with interim relief (such as housing or schedule changes), that OCR should make itself more visible on campus during investigations, and that OCR should improve its coordinating efforts with the Department of Justice.

The above merely touches upon the highlights of the Report.  Over the coming weeks, we will provide more information about the details of the Report and its accompanying documents.  For now, one thing seems clear: the federal government is signaling an even greater enforcement effort with respect to sexual assault on campus.  All colleges and universities should take this opportunity to review their current policies and procedures, in light of the Report and its recommendations, as the Report is clearly the government’s new roadmap.

It is often said that retaliation claims are much harder to defend than the underlying discrimination claim.  This is at least in part because human nature is such that it is not a stretch to believe that someone falsely branded a discriminator will either look to retaliate against his/her accuser or will not pass up the opportunity to retaliate when circumstances present themselves.  Knowing this, clever would-be plaintiffs, believing that the writing is on the proverbial wall in terms of their own performance deficiencies, often try to lay the foundation for a retaliation claim by engaging in protected activity (complaining about discrimination) prior to their employer pulling the trigger on a termination.  The case law is replete with such efforts.   But what happens when the would-be plaintiff’s complaints go beyond allegations they were being discriminated against? Earlier this month, Judge Leonard Wexler of the Eastern District of New York, in Saliba v. Five Towns College, 2014 WL 92690 (E.D.N.Y. 2014),[1] held that the Plaintiff essentially complained her way out of a Title VII retaliation claim.  The Plaintiff was an Assistant Professor of English at Five Towns College.   She alleged she was terminated for complaining about:  sexual harassment committed by another faculty member against students; illegal drug use; campus security issues; and “rampant corruption” in the administration of the College. In granting the College’s motion to dismiss the complaint,  Judge Wexler held that to the extent Plaintiff’s Title VII retaliation claim was predicated on her complaints about students being harassed, as a matter of law, such complaints did not constitute “protected activity.”  Title VII does not cover complaints about “non-employees,” such as students, being subjected to discrimination.  Additionally, Judge Wexler held that because Plaintiff complained about so many different aspects of the College’s operations that had nothing to do with discrimination, her complaint failed as a matter of law.   Citing the most recent Supreme Court decision on point, Judge Wexler held that Plaintiff was require to show that her protected activity was a “but-for” cause of her termination, not just a motivating factor.   In this case, however, Plaintiffs complaints were not about an employee being the victim of discrimination, but were rather about matters completely outside the scope of the anti-discrimination laws. In light of Saliba, employers facing retaliation claims would be well-served to carefully examine the precise nature of the alleged protected activity and to scrutinize whether such activity was the “but-for” cause of the adverse employment action.

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Inside Higher Ed recently reported a situation involving Western Michigan University (WMU).  According to published reports, WMU placed a suicidal student on involuntary medical leave.  The student appealed his dismissal and filed a complaint with the Office for Civil Rights (“OCR”).  The student was readmitted, but he later committed suicide in his apartment, where he was found by his roommate. At present, a debate is raging around this situation.  Some hail the fact that the student won the right to return to campus as a victory for emotionally distressed students.  Others see this as an example of the tragedy that may flow from OCR’s push to require colleges and universities to allow students to remain on campus after they are no longer well enough to be there.  Administrators are caught in the unenviable middle. The issue of what to do in response to suicidal students is anything but a clear one.  This was not always the case.  Over the course of several years, OCR had developed a fairly clear line of cases on this issue, and OCR generally supported involuntary withdrawals where students presented a direct threat to themselves or others.  OCR laid out various procedural “due process” steps and considerations to be met in these situations, which boiled down to notice of the intent to remove the student, an opportunity for the student to respond, and an individualized inquiry into the facts and circumstances of each case.  Most colleges and universities drafted policies incorporating those procedural steps and considerations. The present uncertainty exists as a result of a change to the regulations for Title II of the Americans with Disabilities Act (ADA).  In September 2010, the Department of Justice (DOJ) revised the Title II regulations, and, in particular, with respect to when a student was a “direct threat” such that the student was not otherwise qualified to remain enrolled.  The DOJ’s new direct threat definition is “a significant risk to the health or safety of others” (emphasis added).  That is, DOJ did not include an individual’s threat to self as part of the direct threat analysis.  The Title II regulations were announced in September 2010 and became effective in March 2011. Title II applies to public universities, not private universities.  Private universities are covered by Title III of the ADA, but OCR seems to be moving toward using the same direct threat analysis -- one that no longer considers a student’s threat to himself/herself -- for private universities as well.   OCR has not announced a formal renunciation of its earlier line of cases, and it has been assumed for some time that OCR will provide official guidance to clear up this confusion.  To date, that has not happened. The unfortunate reality is that administrators are in the position of having to “pick your lawsuit”.  A decision to involuntarily remove a suicidal student may result in a discrimination claim.  Of course, if a student commits suicide on campus, the institution runs the risk of wrongful death or negligence claims, not only from the student’s estate but from other students traumatized or even physically injured in the event.  Beyond the legal risks, there are bedeviling educational and ethical questions that go to the balance between the interests of the mentally ill student and the interests of the learning community as a whole. That elusive “right thing to do” depends on the unique circumstances of each situation.  With that said, the following are universally helpful factors to bear in mind.

(1)       Be certain to consider each situation on an individualized basis, taking into account the student’s behavior on campus, the opinions of campus mental health professionals, and the resources available short of an involuntary leave that may allow the student to remain safely enrolled.

(2)       If a leave of absence is in order, it is always best that the student leave voluntarily -- truly voluntarily (not threatened into a voluntary leave).  This is always the safer route, from a liability standpoint.

(3)       If the student is to be removed involuntarily, consider whether there are facts to be cited demonstrating the student’s threat to “others” as well as to “self”.  The student’s removal should be based on these larger community-type factors in addition to any expressed or anticipated harm to self.

(4)       Ensure that leave policies do not treat removals for psychological reasons more harshly than removals for other reasons.  If a readmission policy is more onerous for psychological leaves versus other leaves, OCR may find the policies discriminatory on this basis alone.  If an institution requires “proof” that a psychological condition has been addressed before readmitting a student, it should require some kind of similar “proof” from students who required leaves for other reasons -- whether general medical reasons, finances, family commitments, and so on -- that the circumstances that necessitated these non-psychological leaves have been dealt with as well.

(5)       Be sure the institution’s policies reflect its sense of the appropriate balance of the legal, educational and ethical concerns these situations present.  Once that balance is decided upon, the institution must follow its policies carefully and precisely with respect to each troubled student.  OCR is highly attentive to an institution’s compliance or lack thereof with its own published policies.

There will no doubt be further legal developments and continued academic debate around these very difficult situations.  In the meantime, administrators should work closely with legal counsel to navigate the best path forward for their particular institution.

In the past three years, there has been considerable activity on the Title IX/Sexual Assault legal front.  We have all read about the increase in claims  brought by victims against their institutions through the complaint procedures of the U.S. Department of Education’s Office for Civil Rights.  There have been well publicized resolution agreements reached between OCR and institutions.  And there has been the April 2011 “Dear Colleague” letter issued by OCR that has been the subject of much debate. But institutions are also starting to see an increase in push back from students accused of sexual assault.  A recent Bloomberg report highlights a number of legal complaints filed by male students against their institutions as a result of disciplinary action taken against them arising out of sexual assault claims. Institutions should not ignore these latest challenges.   At a minimum, they should review their existing investigation and hearing procedures not only to ensure that they provide appropriate protections for those accused, but to also make sure that they provide “equal” process for both the victim and the accused.  OCR has made it clear that the process needs to be the basically the same for both parties.  For example, if the victim has the right to have an advisor present throughout the proceeding, the accused must be afforded that same right; if the victim has the right to appeal a hearing decision, the accused must be afforded that same right. In addition, it is critical that institutions “execute” in accordance with their own policies and procedures.  While institutions have a fair degree of leeway with respect to what goes into their policies, the surest way to create a legal issue is to then not follow those policies.  Do not put something in your policy that you are not prepared to live with, and once you put it in your policy you need to make sure you follow it. Whether now, at the end of the calendar year, or in the Spring, at the end of the academic year, at least annually an institution should conduct a thorough review and audit of the past year’s sexual harassment/assault cases.  Determine what was done correctly and what could have been done better.  Based on those experiences, consider modifications to your policies and procedures, and/or to your implementation of them, to best position your institution, and the outcomes reached in your internal proceedings, against future legal attack.

Institutions often make a “deal” with an individual faculty member that is memorialized in something less formal than a lawyer-drafted contract, and there is always that lingering question as to whether it will be “enforceable” if and when the time comes.  A recent decision involving Northwestern University is good news for institutions in this regard. Here, a faculty member had requested from the Dean a year’s leave so that he could visit at another institution.  The Dean indicated that she would provide that leave, along with a second leave to take place three academic years into the future (with the faculty member teaching in the intervening years) provided the faculty member would then retire at the end of that second leave.  Ultimately a “deal” was struck and the Dean followed up with a letter to the faculty member that provided “…I will accept your resignation from the …faculty effective with your retirement on August 31, 2012….”  The letter went on to explain his leave and teaching responsibilities. In 2011, the faculty member was reminded that the next year would be his last and then he would be retired.  He balked, indicating that he did not want to retire and insisting that he had never agreed to retire.  He filed an EEOC charge and upon receiving his right to sue letter, commenced an action in U.S. District Court in Chicago.  The District Court ruled against him and he appealed to the U.S. Court of Appeals for the Seventh Circuit, which also found for the University. First, the faculty member argued that the University discriminated against him by offering retirement packages to older employees but not younger ones.  After recognizing that employers would have little reason to offer retirement/early retirement packages to new workers, the Seventh Circuit confirmed that the Age Discrimination in Employment Act (ADEA) simply “does not forbid offers that favor older workers over their younger colleagues.” Next the faculty member argued that he construed his arrangement with the University as giving him an option to retire after the 2011-2012 year, but it was never his intent that he had to retire.  The Court had no trouble describing the arrangement reflected in the letter from the Dean a “contract.”  Nor did it have any trouble interpreting this agreement as committing the faculty member to retire no later than the end of the 2011-2012 year.  The faculty member’s non-sensical “understanding” – that it remained his option – would have had the University giving him two years worth of paid leave in exchange for only the possibility that he might retire after the 2011-2012 year (which of course was a possibility anyway).  As the Court observed:  “People pay to acquire options; they do not get options (and two years’ pay) handed to them for nothing.”  Thus the Court rejected the faculty member’s interpretation as unreasonable.  In a welcomed explanation of judicial reasoning, the Court observed: “judges understand written agreements to mean what reasonable people understand them to mean.” When so much happens between an institution and its faculty through less formal arrangements, often reflected in simple letters, it is good to know that Courts will recognize them and, along the way, provide a common sense interpretation.

At the end of last week, the U. S. Department of Education announced that its Office for Civil Rights (“OCR”) had entered into a Resolution Agreement with the State University of New York (“SUNY”) dealing with Title IX compliance issues.  Significantly, the Agreement arose out of an OCR initiated investigation and was not based on the filing of any complaint against SUNY.  OCR’s Resolution Agreement and accompanying letter of findings are significant because, as with OCR’s Resolution Agreement earlier this year involving the University of Montana, they provide a roadmap as to what OCR considers to be the requirements of Title IX in the sexual harassment context. OCR’s latest pronouncements start with its basic operating premises:

1. if a recipient of federal financial assistance knows or has reason to know about sexual harassment which creates a hostile environment, it must take immediate action to eliminate it, prevent its recurrence and address its effects;
2. when responding to any complaint of sexual harassment, a recipient must take immediate and appropriate action to investigate or otherwise determine what occurred;

• if that investigation reveals that discriminatory harassment occurred, the recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent recurrence;

1. these duties exist regardless of whether a student has complained, asked the recipient to take action, or identified the harassment as a form of discrimination.

From there, these documents offer important insight into OCR’s perspective of the full scope of a recipient’s obligations under Title IX.  First, of course, the institution must have a policy expressly providing that it does not discriminate on the basis of sex in its educational programs or activities, that this prohibition extends to employment, and that  inquiries concerning the application of Title IX may be referred to the institution’s Title IX Coordinator or to OCR.  The Title IX Coordinator should be clearly identified by name or title, with contact information (phone number, address, email).  Notice of this policy must appear, at a minimum, in announcements, bulletins, catalogs and application forms used in connection with the recruitment of students and employees and should be published broadly including on the institution’s website.  Notice of the institution’s non-discrimination policy must also be provided to any unions representing the institution’s employees. Second, the institution must maintain procedures for resolving sexual harassment complaints.  These procedures can be either the same as those used for resolving other types of complaints or can be dedicated to the resolution of sexual harassment complaints, but in either event they must provide for the prompt and equitable resolution of complaints, whether brought by students, employees or third parties.  As in the University of Montana agreement, this Resolution Agreement and letter of findings set forth OCR’s view of what should be included in these policies:

1. an appropriate definition of sexual harassment and examples of harassing conduct;
2. clear notice of where complaints may be filed, including the name or title, phone, address and email information of those individuals;
3. notice that students, employees and third parties may access these procedures (based on information we have received in other instances from OCR, we do not believe that OCR requires that the same procedure must apply to all three categories);
4. designated and reasonable prompt timeframes for major steps of the grievance/complaint process;
5. notice of the availability of interim measures to assist the complainant and the nature of those measures (such as the availability of counseling and academic assistance, steps that can be taken if the alleged perpetrator lives on campus and/or attends classes with the victim, etc.).  Pending the outcome of the investigation, a recipient must take steps to protect the complainant from further harassment, and must ensure that such interim measures will not disproportionately impact the complainant;
6. notice of a complainant’s Title IX rights and any available resources, such as counseling services and their right to file a complaint with local law enforcement;
7. in the event the policy provides for informal resolution procedures (such as mediation) the policy it cannot require a complainant to work the matter out directly with an alleged perpetrator, the complainant must know that he or she can end informal resolution at any time, and if the allegations include sexual assault/violence, mediation is not appropriate even on a voluntary basis (as was the case in OCR’s 2011 “Dear Colleague Letter,” OCR’s letter of findings refers to mediation as one example of informal procedures that may be available, but then provides only that mediation is not appropriate in cases of sexual assault/violence;  presumably other informal procedures may be);
8. any hearing processes must be equally available to both parties, including the opportunity to present relevant witnesses and other evidence and if an appeal process is provided (based on the Resolution Agreement, it appears that OCR does not require an appeal procedure), it must be available to both the complainant and the respondent;
9. written notice to the parties of the outcome of the proceedings, including any appeals (if appeals are provided for);
10. assurances that the institution will take steps to prevent further harassment and to correct its discriminatory effects on complainant if appropriate;
11. protections against retaliation, including ensuring that complainants know how to report any subsequent problems (and the institution should follow up with complainants to determine whether any retaliation or new incidents of harassment have occurred);
12. assurances of confidentiality to the extent possible, but even if the complainant requests confidentiality or asks that a complaint not be pursued, an institution must nonetheless take all reasonable steps to investigate and respond consistent with that request for confidentiality or request not to pursue an investigation (although OCR has given little guidance explaining how an institution is to strike that balance appropriately);
13. if the incident involves potential criminal conduct, the recipient must determine consistent with state and local law whether law enforcement should be notified (but it should not wait - more than temporarily - for law enforcement to carry out its responsibilities).

In addition to these provisions, OCR apparently expects an institution to maintain documentation of all proceedings (although OCR does not indicate how long).  Institutions also must provide training regarding the grievance process to any employees likely to witness or receive reports of sexual harassment and violence (e.g. faculty, campus security, university administrators, counselors, health personnel and resident advisors).  Training can be in person or on line for all staff responsible for recognizing and reporting incidents. Responsible persons are to report not only complaints brought directly to them, but also conduct they observe first-hand or learn about in some other way. The Resolution Agreement also requires SUNY to conduct an annual review of all complaints to identify patterns or systemic problems and to conduct annual climate checks. Simply because OCR required the above in its Resolution Agreement with SUNY does not mean it necessarily will require all of these items from every other institution, nor does an institution incorporating all of these items into its policies ensure that OCR will not require something more or different in a review of its policies.  Nevertheless, the above should provide a useful checklist for institutions to consider.