The Higher Education Practice Group of Bond, Schoeneck & King, a member of the Employment Law Alliance, is pleased to invite you to attend a free 60-minute webinar, “’Privatized’ Student Housing on Campus”, on Wednesday, June 10. It has become increasingly common for colleges and universities to partner with private parties and other entities to develop, construct, and operate student housing. Such privatization can provide significant financial and other advantages, but it also can present unique legal and business considerations.  In this webinar, Paul W. Reichel, a member of Bond's Higher Education Practice group, along with other guest speakers, will provide insight and guidance on topics including: • Alternative structures • Protecting the school’s interests • Foundation-owned projects • Credit impacts Click here to register, and then click the "register" link to the right of the title. Please be sure to confirm the corresponding start time in your local time zone.    

On April 24, the Department of Education’s Office for Civil Rights (“OCR”) issued new materials on Title IX. The materials include a Dear Colleague Letter to educational institutions, a letter to Title IX Coordinators and a Title IX resource guide. While the new documents are almost entirely a restatement of OCR’s previous pronouncements, there are a few noteworthy points. In the new materials, OCR focuses on the role of the Title IX Coordinator within an institution. Given the extent to which the materials reiterate OCR’s previous guidance and Q&A, it is unclear why OCR felt it necessary to create and release these new documents. One suspects that the attention is designed to increase the cultural authority of the Title IX Coordinator by stressing to the highest levels of institutional leadership the essential role that Coordinators play in Title IX compliance. OCR warns that many of the most egregious and harmful Title IX violations it has identified occurred when an institution failed to designate a Title IX Coordinator or failed to properly train and give an appropriate level of authority to its Coordinator. The new materials stress the following:  Designation of a Title IX Coordinator Pursuant to the Title IX regulations, institutions must at all times have one or more employee(s) designated to coordinate their efforts to comply with and carry out its responsibilities under Title IX. When selecting a coordinator, OCR instructs institutions to consider the following: Independence – OCR reiterates its position that the Coordinator’s role should be independent of any other duties to avoid any potential conflicts of interest. However, in the new materials, OCR goes one step farther and recommends that the Coordinator should report directly to the president.  OCR bases this recommendation on its concern that the Coordinator have both the independence and institutional authority to carry out Title IX compliance functions. Full-Time Coordinator- OCR stresses its previously stated position that employing a full time Title IX Coordinator, while not required, minimizes the risk of conflicts and provides more time to allow the Coordinator to perform all of the role’s responsibilities. OCR’s push toward a single, solely focused Title IX Coordinator evidences not only OCR’s continued laser focus on Title IX but also its lack of appreciation that Title IX is merely one of a thousand concerns for institutions and that not every institution, particularly the smaller or less well funded ones, can afford this luxury. Multiple Coordinators- OCR suggests that larger institutions may find it best practice to designate multiple Title IX Coordinators who work throughout different areas of the institution. According to OCR, institutions already implementing this practice have reported more effective training of the school community due to greater opportunities for students and staff to become familiar with the Title IX Coordinators. If an institution opts for multiple Coordinators, OCR requires that one be designated Lead Coordinator and that the areas of responsibility of each be clear to the community.  Responsibilities & Authority of a Title IX Coordinator  As the Title IX Coordinator’s primary responsibility is to coordinate the institution’s compliance, OCR reminds institutions that the Coordinator must receive notice of all reports and complaints raising Title IX issues. In these documents, OCR stresses that Coordinators’ responsibilities also include monitoring outcomes, identifying and addressing patterns, and assessing effects on the campus climate, and OCR mentions the campus climate survey that it recommends, but not does require, institutions to undertake. OCR also expressly states that institutions are prohibited from retaliating against Coordinators for carrying out their duties even when they point out areas of Title IX noncompliance. Interestingly, OCR states in the new Dear Colleague Letter that Title IX does not prohibit Title IX Coordinators from determining “the outcome of Title IX complaints” or “the actions the school will take in response to such complaints”.  Indeed, OCR expressly states in these new materials that the Coordinator may play that role, provided that there are no conflicts of interest.  It is not entirely clear what to make of these statements.  OCR does not define what it means by the "outcome of Title IX complaints" or the "actions" in response to a complaint, but these terms seem to include institutional disciplinary responses.  It is reassuring to know that OCR appears to endorse Coordinators taking a greater determining role in the outcome of individual complaints, but this sentiment is confusing because contradicts other of OCR’s statements. It will be recalled that OCR’s view is that a Dean of Students and a member of a disciplinary board may have a conflict of interest in serving as Title IX Coordinator. OCR has not explained why those positions may create a conflict of interest, but the source of the conflict has been assumed to be the involvement in the disciplinary decision making process. It would seem odd if OCR views as a conflict a Title IX Coordinator being part of a disciplinary board but would have no problem with the Title IX Coordinator making the disciplinary decision himself or herself. Further clarification on this point will be needed. Support for Title IX Coordinators  The materials advise that institutions should make Coordinators visible to the campus community. OCR states that it views broad visibility of the Coordinator as evidence of the institution’s commitment to Title IX compliance. OCR’s regulations require that the institution must include its Title IX nondiscrimination notice in bulletins, announcements, applications, applications, catalogs and other publications, as well as ensuring that the Coordinator’s contact information is widely disseminated. In the new materials, OCR also endorses creating a general email address (such as TitleIXCoordinator@school.edu) and including only that general email address and position title in published materials. This is to address the problem created when published materials include an individual’s name, email and other contact information and the person leaves the position or the institution altogether. However, OCR is clear that, while the hardcopy publications may use only this general information, the institution’s website must be kept current to identify the Title IX Coordinator by name and with personalized contact information. OCR also suggests that institutions create a Title IX webpage linked to their main website to provide additional information on policies and procedures for filing Title IX complaints and any resources available to students or employees. In these new materials, OCR mentions social media, saying that, if an institution uses social media to communicate with the community, it should include the Title IX Coordinator’s contact information on social media as well. It is not clear how an institution would do this on many social media platforms, and the fact that OCR would suggest this is yet another indication of the time and attention OCR expects -- reasonably or unreasonably -- that institutions will pay to this one issue: Title IX.

In this, our last, post on New York’s proposed sexual violence legislation, we focus briefly on three remaining aspects of the bill: climate surveys, training and implementation. Campus Surveys The legislation requires institutions to conduct a campus climate survey and to conduct such a survey “no less than every other year.” This particular section would go into effect on the 180^th day following enactment of the legislation. It would appear that this would require an institution to be ready to go with its first survey at that 180 day mark, or sooner, issuing new surveys not less than every other year thereafter. The legislation provides a list of topics that, at a minimum, must be covered in the survey, including questions aimed at assessing student and employee knowledge about: (1) the role of the Title IX Coordinator; (2) campus policies and procedures addressing sexual assault; (3) how and where to report sexual assault; (4) the availability of resources on and off campus; (5) the prevalence of victimization and perpetration of sexual assault, domestic/dating violence and stalking during a set time period; (6) bystander attitudes and behavior and (7) whether victims/survivors report and the reasons they do/do not report. Needless to say, efforts are to be undertaken to ensure that answers remain anonymous. The survey results are to be published on the institution’s website. The legislation even provides that the survey is not “subject to discovery or [to being] admitted into evidence in a federal or state court proceeding or considered for other purposes in any action for damages brought by a private party” against an institution. It is not entirely clear, however, whether this state legislation would prevent the discovery or other use of this information in a federal proceeding brought under federal law. Training Section 6446 is entitled “Student Onboarding and Ongoing Training.” It provides that an institution must “adopt a comprehensive student onboarding and ongoing education campaign to educate members of the college or university community about sexual assault, domestic violence, dating violence and stalking, in compliance with applicable federal laws ….” This provision suggests that it is not the intent of the state law to require any training not already required by federal law, although the legislation does require training on the specific policies and procedures required by this particular state legislation and as a result may in fact necessitate some training content beyond what is actually required by federal law. In addition, the legislation expressly requires that training occur as part of “onboarding.” It is not yet clear whether that literally means that for new students this training must occur as part of the actual orientation process, or if it can be provided post-orientation. However, from the summary accompanying the legislation, it certainly appears that even if some form of training is literally required during orientation itself, it need not all be provided in that period, and there is recognition that the most effective training happens over a more extended period of time. The legislation also provides that institutions “shall use” multiple methods to educate students. It provides that those methods can include a President’s Welcome messaging, peer theater and peer education programs, online training, social media outreach, first year seminars, course syllabi, faculty teach-ins, and many other options. It appears entirely up to each institution to select what will work best for its community. The legislation requires that institutions provide or expand “specific training to include groups such as international students, students that are also employees, leaders and officers of registered or recognized student organizations, and online and distance education students.” It also calls for “specific training to members of groups identified as likely to engage in high-risk behavior.” Periodic assessment of the institution’s training efforts is also required. Implementation The legislation provides that “the trustees or other governing board of each [institution] shall adopt written rules for implementing all policies required pursuant to this [legislation].” In other words, it is not enough that an institution’s administration responds to the requirements of the legislation, the Board of Trustees itself must “adopt written rules for implementing” the required policies.

Inside Higher Ed has issued its 2015 Survey  of institutional presidents and, as in years past, it makes for very interesting reading. The Survey is based on responses from 647 institutions, including 338 public institutions, 262 private institutions, 26 college and university systems, and 21 for profit institutions. A number of topics were surveyed, including government oversight, financial sustainability, sexual assault, race relations and faculty hiring. Here are a few of the highlights:

• With respect to the Obama Administration’s rating program for colleges and universities, 56% of respondents gave the program a grade of “D” or “F.”
  • There were also varying degrees of support (or lack of support) for the various criteria featured in the program for rating institutions. Using a 1 to 5 scale (with 1 being “not at all supportive” and 5 being “extremely supportive”) the noted percentages of institutions gave the listed features a 4 or 5 level of support:
    • percentage of first generation students enrolled (49%)
    • percentage of Pell Grant-eligible students (48%)
    • degree completion rate (47%)
    • net price (46%)
    • graduate employment rate (42%)
    • loan default rates (38%)
    • federal graduation rates (29%)
    • graduate income level (18% -- 36% actually indicated that they were not “at all supportive” of the use of this factor).
• With respect to budget and finances, worries persist. On the same 1 to 5 scale:
  • 80% rated their confidence in the sustainability of their own financial model over the next five years at 3 or above.   Private nonprofit institutions came in at 84%, while public institutions were notably lower at 75%.  More notably, in the 2014 Survey, confidence was actually higher, with 84% overall providing a score of 3 or above when looking at the sustainability of their own financial model over the (then) next 5 year period.  Private nonprofit institutions came in at 87% and public institutions at 84%. Thus, across all institutions generally, presidents are less optimistic and, clearly, public institutions are feeling the pinch even more than private nonprofit colleges and universities.
  • In the 2015 Survey, looking out over a 10 year horizon, only 70% of institutions overall have confidence in the sustainability of their financial model at a level of 3 or above. For private nonprofit institutions the number is 78%, while for public institutions it is 65%. In the 2014 survey, 79% of institutions overall rated their confidence level over the next 10 years at 3 or above, with 81% of private nonprofit institutions providing that rating, and 75% of public institutions.  Again, we see outlooks trending downward.
  • Only 28% of presidents responded to the statement “The economic downturn that started in 2008 is effectively over at my institution” with a 5 (“strongly agree) or 4 rating. On the other hand, 48% of respondents replied with a 1 (“strongly disagree”) or 2 rating, with 52% of public institutions providing that 1 or 2, and 43 of private nonprofit institutions providing a 1 or 2.
• With respect to the issue of sexual assaults:
  • 63% responded that female students are a lot safer (2%) or somewhat safer (61%) as a result of the federal government’s efforts in this area
  • 57% of presidents (64% in the public sector but, somewhat surprising, a much lower 49% in the private nonprofit sector) agree with the use of a preponderance of the evidence standard (as opposed to a beyond a reasonable doubt standard) in adjudicating such cases in on-campus disciplinary proceedings
  • Most institutions, 71%, believe that laws like California’s “affirmative consent” law are likely to be “not too effective” (44%) or “not at all effective” (27%) in preventing sexual assaults on campus
  • 32% of institutions responded with a rating of 5 (“strongly agree”) or 4 that sexual assault is prevalent at U.S. colleges and universities (another 42% gave a 3 rating), but only 6% provided a 5 or 4 rating that it is prevalent on their campus (17% provided a rating of 3)
  • 52% answered with a 4 or 5 that fraternities play a disproportionate role in assaults
  • 77% answered with a 4 or 5 that their campus is doing a good job protecting women from sexual assault
  • 90% answered with a 4 or 5 that their institutions provide appropriate due process for those accused of sexual assault
  • Somewhat surprisingly, only 46% responded with a 4 or 5 that local law enforcement should be responsible for handling all sexual assaults on campus
• With respect to race relations, 81% rated the state of race relations on their campus as excellent or good, but only 43% felt that race relations on college campuses generally were excellent or good.
• With respect to faculty issues
  • 55% responded with a 5 (strongly agree) or 4 that they should take a more active role in decisions about which faculty to hire, with 66% responding with a 5 or 4 that they should take a more active role in tenure decisions
  • 62% responded that they do not conduct their own reviews or largely defer to department decisions in the faculty hiring process, while 52% (55% in the public sector and 46% in the private nonprofit sector) do not conduct their own reviews or largely defer to departmental reviews in tenure cases.

The full Survey provides much more information, broken down by type of institution, and, as in years past, is “must” reading to ascertain what’s on the mind of college and university presidents.

For decades, the Internet was limited to a small number of top-level Internet domains, the most common being .com, .org, .net, .edu, and country-specific domains. However, in 2012 the Internet Corporation for Assigned Names and Numbers (ICANN) began offering new generic top-level Internet domains (gTLDs) to any entity willing to pay the nearly $200,000 in required fees. There are now hundreds of gTLDs, with the most popular new domain being .guru with more than 50,000 domains registered. Starting this week, the owners of the new top-level domain “.college” offered colleges and universities with registered trademarks the opportunity to register their trademark as a domain for free until April 17, 2015. On April 20^th, a general “landrush” period will open in which universities will be able to register domains that aren’t registered trademarks. For .college and any other new gTLD, the question is whether it is worthwhile to register the college or university’s trademarks as domains. Institutions that are unhappy with or limited by their current .edu or .com domains should consider whether a .college domain would enhance their online brand. Additionally, since the .college domain may be especially susceptible to uses that infringe the trademarks of colleges and universities, institutions should consider registering for this particular gTLD. Although .college is wisely allowing higher education intuitions the ability to reserve their registered trademarks as domains for free, many gTLDs charge for this opportunity, thereby recovering the considerable expense incurred when creating the domain. The cost of registering a trademark at every new gTLD can quickly become exorbitant. As an alternative to registering their name with every new gTLD, colleges and universities should be aware that there are both proactive and reactive measures they can take to protect their trademarks. Proactive Measures The Trademark Clearinghouse (TMCH) is an ICANN database of validated and registered trademarks that prevents gTLDs from granting second-level domains containing the trademark. For example, if the trademark “COLLEGEXYZ” is registered in the TMCH, the entity running the new .college gTLD will not be allowed to registered collegexyz.college. The TMCH is a much simpler and more affordable mechanism than policing every new gTLD and pre-registering one or more trademarks. Reactive Measures  If a trademark is not registered in the TMCH, or a confusingly similar domain name is registered, the University can use one of two ICANN resolution systems. The first, the Uniform Domain Name Dispute-Resolution Policy (UDRP), has been around for more than a decade and allows trademark owners to transfer ownership of domains that were registered or used in bad faith. The process is relatively inexpensive, but fees add up quickly if multiple domains are involved. The second, the Uniform Rapid Suspension (URS) system, allows trademark owners to quickly address trademark infringement arising from new second-level domains. The process usually takes only a few weeks and is less expensive than the UDRP system. If an institution detects a second-level domain that incorporates or infringes its mark, it can use the URS to obtain a quick solution that removes the domain, or the UDRP to transfer ownership of the domain to itself. Conclusions The proliferation of new gTLDs can potentially create new headaches for colleges and universities. However, by registering in the Trademark Clearinghouse and actively policing their marks, institutions can prevent or quickly respond to many of the potential issues that may arise.

In this installment of our continuing analysis of the Governor’s “Enough is Enough” proposed sexual violence legislation, we turn to the minimum penalties for offenders that the bill would require. The bill, if passed as written, would mandate that colleges and universities include the following provision in their sexual misconduct policy: “For students found responsible for committing sexual assault, the available sanctions shall be either immediate suspension with additional requirements or expulsion.” Thus, a college and university would be required by law to suspend or expel any student found by a preponderance of the evidence to have committed “sexual assault”. Note the word “shall”: the legislation would allow absolutely no institutional discretion, no matter the facts or circumstances of the “sexual assault”. This leads to the obvious question, “What conduct is deemed a ‘sexual assault’ for purposes of this mandatory minimum penalty?” The bill does not define the term “sexual assault”, and “sexual assault” is not defined under New York’s penal code. Assuming that the bill intends to track VAWA’s definition of “sexual assault”, the following would be included: rape (which is any nonconsensual penetration), fondling (which is any nonconsensual sexual touching of private body parts), statutory rape and incest. Recall that this bill requires “affirmative consent”, meaning that all parties must have actively expressed consent to the specific sexual act on this specific occasion. Silence is not consent, and consent on prior occasions alone is not enough. Consider the following scenario. A male student and a female student have been “hooking up” on each of the past five Saturday nights. They kiss, and he starts to touch her breasts, and she removes her shirt. On the sixth Saturday, the kissing and touching occur but she does not remove her shirt. After a few minutes, he stops, and they go their separate ways. The woman brings a complaint, saying that she did not want her breasts touched on this recent Saturday night. She did not tell him during the interaction how she felt, but she also did not say that the touching was okay or actively participate (e.g., she did not remove her shirt). Assuming that it is determined that she did not affirmatively consent to the touching on that night, the college would have no choice except to – at a minimum – suspend the male student and impose undefined “additional requirements” on him. (The college would have the discretion to determine the length of the suspension, but the college would have no discretion about whether to suspend.) If there is any campus situation laden with critical nuance, it is a sexual interaction between two young adults. Administrators would likely agree that many, and perhaps even most, acts of nonconsensual sexual activity should result in suspension or expulsion. But there may be circumstances where a suspension ‘plus’ or expulsion seems too severe a penalty in view of all of the relevant circumstances of the case. The dilemma is heightened by the absence of a definition of sexual assault in the legislation, as it is not clear whether the bill intends to cover any nonconsensual sexual contact. If so, a single kiss without affirmative consent may constitute a sexual assault that requires a suspension. Perhaps there is leeway in how an institution defines sexual assault for the purpose of imposing a mandatory minimum penalty, but that is not clear from the statute. The possibility of this result may have an ironic unintended consequence. The mandatory minimum penalty no doubt stems from the perception that institutions have been too lenient on offenders. However, in a close case, an investigator or disciplinary decision making body, realizing that a finding of responsibility will trigger an automatic penalty of at least suspension and feeling that such penalty is unwarranted under the circumstances, may decline to find responsibility at all. The proposed legislation’s goal of ensuring that serious offenses are punished seriously is laudable. However, the legislation’s use of a blunt instrument approach to sanctioning risks overshooting the mark and deprives institutions of the ability to consider the unique circumstances of specific cases. Despite the good intentions behind the legislation, the mandatory minimum penalty provision is language that we believe could benefit from modification, or at least clarification and definition, to better serve its purpose.

To avoid, or at least minimize, environmental cleanup costs that can be imposed under state and federal superfund laws, a college or university should conduct “All Appropriate Inquiries” (AAI) before buying, leasing and accepting as a donation real estate. Conducting AAI means to undertake a Phase I Environmental Site Assessment (ESA), and until recently, that meant using the ASTM International Standard E1527-05. On December 30, 2013, the EPA amended its AAI rule and concluded that the new ASTM International Standard E1527-13 may also be used. Some of the changes in the new standard are fundamental such as the updating of the definitions of certain key terms, the addition of a new term “Controlled Recognized Environmental Condition” and a need to assess soil vapor migration. Since its initial approval of ASTM E1527-13, EPA has gone one step further. In its October 6, 2014 AAI regulatory amendment, the Agency eliminated the option to use ASTM E1527-05 as of October 6, 2015. On March 5, the first of a two-part webinar series was held and provided an overview of the environmental remediation liability programs and walked through the performance of a Phase I Environmental Site Assessment (ESA) using the updated ASTM method. If you missed this webinar, we invite you to view it by clicking here. Please join us on Thursday March 19 for Part II of the webinar presentation on AAI and the new ASTM standard. Part II will provide practice pointers in the context of the ESA process and address the following topics:

• Hiring the Environmental Professional • Confidentiality and Scope of Required Notification to Governmental Authorities • Use of Prior Phase I ESAs • Third Party Reliance on a Phase I ESA • User Obligations – § 312.22 • Environmental Liens • Agency File Reviews • Non-Scope Items • ASTM E2247-08: Phase I ESA for Forestland or Rural Property

This ASTM Phase I ESA update webinar is recommended for anyone who has responsibility for environmental matters on campus, including legal counsel, facility managers, risk management/insurance and environmental health and safety professionals. Register for this webinar by clicking here.

As we noted in our last post, we will be taking a closer look at the specific provisions of New York’s proposed sexual violence legislation over the next week or so.  With the Governor’s Office urging New York colleges and universities to endorse this legislation, it is particularly important that institutions understand its provisions. Before turning to the first provision we will examine – “affirmative consent” – a few general comments.  The first is whether this legislation is really needed.  While everyone can agree on the importance of dealing with sexual assaults on college campuses, the federal government has done so, and continues to do so, in a comprehensive way.  As the law and guidance have evolved, few could argue that Title IX does not comprehensively address sexual assault on campus.  Another layer of government regulation in this area is not necessarily helpful. This seems particularly so here, where much of the legislation mirrors already existing federal requirements.  And, in those circumstances where it does not directly track the corresponding federal statutes, regulations and guidance, it creates the potential for confusion and ambiguity.  In some instances, the legislation may even be subject to arguments, by students and other concerned parties, that it conflicts with federal law, including specifically the federal government’s announced requirements under Title IX (although it is assumed that this is not its intent).  While the legislation may provide political mileage and reinforce the attention that needs to be devoted to this important issue, it remains to be seen how substantively helpful it will be. Today, we want to focus on the legislation’s “definition of affirmative consent to sexual activity,” found in Section 6440.  (The very fact that legislation is proposed requiring all institutions to adopt uniform definitions for campus misconduct policies is itself seemingly unprecedented.) While the publicity surrounding the legislation suggests that it requires institutions to adopt a definition of consent that is “novel,” that is simply not the case.  The legislation’s basic definition of consent is:

Affirmative consent is a clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in sexual activity.  Consent is active, not passive.  Silence of lack of resistance cannot be interpreted as consent.  Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.  Consent to any sexual act or prior consensual sexual activity between or with any party does not constitute consent to any other sexual act.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identify or gender expression.  Consent may be initially given but withdrawn at any time.  When consent is withdrawn or cannot be given, sexual activity must stop.  Consent cannot be given when a person is incapacitated.

This requirement of an “affirmative” expression of consent is already typical in most college and university policies.  Not explicit in the legislation’s language is that affirmative consent can be evidenced by conduct, i.e., active participation in the sexual activity, which is typically addressed expressly in existing institutional policies.  While the legislation requires institutions to adopt this specific language, hopefully institutions may supplement this language by continuing to recognize that the required “agreement” can be evidenced by active (and voluntary) participation in the conduct in issue, thus providing more clarity to this standard. Where the definition raises some potentially significant questions is in its subsequent explanation of incapacitation.  The definition of consent in the legislation continues by providing:

Incapacitation occurs when an individual lacks the ability to fully and knowingly choose to participate in sexual activity.  Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.  Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. (Emphasis added.)

If there is one area where colleges and universities would welcome additional guidance, it is in the often vexing task of distinguishing between “intoxicated sex” and sex that occurs while a participant is incapacitated, and therefore cannot provide consent.    In a number of contexts, including in the criminal justice context as well as in sexual assaults on campus, incapacitation and intoxication have been understood to reference two very different concepts, although distinguishing between the two is often not easy at all.  To help students understand the difference, many college and university policies in defining incapacitation expressly talk about it in terms of the ability to understand the “who, what, when, where” of the sexual contact. Rather than provide much needed clarification and guidance, the definition in the legislation as currently written may create more confusion.  If the legislation actually mandates use of the above language (and, only the exact above language) to define consent and incapacitation, that language contains no practical measuring stick by which incapacitation is to be determined.  This is a missed opportunity to assist both administrators who grapple with this already difficult issue, as well as the rest of the campus community seeking to understand the institution’s (or, here, the Legislature’s) expectations. Further, the language raises potential questions as to whether a different -- lower -- standard is to apply. Under the proposed legislation, the definition of incapacitation is tied to an individual’s lack of ability to “fully” choose to participate.  That reference may be subject to an interpretation that mere intoxication (or even something less) might be enough to render someone incapacitated, but if the definition ended there that might not necessarily be the case. But the definition continues by providing:  “Incapacitation includes impairment due to drugs or alcohol,” with no further definition of “impairment.”  This begs the question whether anyone who is “impaired” is incapable of giving consent. To put this issue in some context, driving while ability is “impaired by alcohol” (which is very similar language) in New York is the lowest level offense and occurs when someone has a blood alcohol content of more than .05 but less than .07.  Under BAC estimators, a level in excess of .05 could be triggered by a 120 pound female drinking as little as two glasses of red wine over a 90 minute period.  If that is the intended standard, incapacitation will exist (and nonconsensual sexual contact will occur) in far more circumstances than anyone now considers to be the case and would make almost any alcohol consumption enough to legally prevent what is otherwise consensual sexual activity. We do not believe that the intent of this legislation is to reduce incapacitation to this level of mere “impairment”; presumably, the intent is to provide that an individual is unable to consent to sexual activity if the individual is impaired to the point of being incapacitated.  However, without further clarification or guidance, it leaves the issue subject to debate.  If the Legislature really wants to provide meaningful assistance to students and institutions, it will look at providing more clarity about the issue of “incapacitation.” In coming posts, we will explore additional aspects of the proposed legislation in relation to the current standards in this area.

As many of you know, on Wednesday, February 25, New York’s Governor Cuomo announced his support for new legislation in New York related to sexual misconduct on college campuses. There are a number of aspects of this proposed legislation which raise interesting questions, both about how it would work generally and its compatibility with Title IX and OCR’s enforcement of that federal mandate.  Over the course of the next week, we will be posting on specific provisions of this proposed legislation and what it may mean. Of some note, in explaining his belief that this legislation is needed, the Governor suggested that colleges and universities are currently incentivized to keep claims of sexual assault as “internal” matters and avoid their reporting to law enforcement authorities.  The Governor has been quoted as saying:

“The incentive, especially for private schools, is to handle the matter internally,” he said. “Why? Because the university doesn’t want the publicity in the newspaper of a rape. It’s not positive for the reputation of the school. So all the incentives are to handle it internally as an academic matter, as a campus matter, and the campus security will investigate, the school will convene a panel of professors.”

Frankly, this assertion is contrary to our extensive experiences with many private colleges and universities – who are quite genuinely concerned not with public relations impacts but with trying to handle matters for which they are not particularly well suited in a way that is fair to all involved.  It also seems to ignore OCR’s view, and the terms of legislation recently signed by Governor Cuomo himself, that the victim, not the institution, should determine whether incidents are reported to law enforcement officials. In any event, stay tuned next week as we go through the specific provisions of this proposed legislation and offer our thoughts.

At the end of 2014, the FBI issued its Study of Active Shooter Incidents in the United States between 2000-2013 (“Study”).  This first of its kind study found 160 active shooter incidents in the United States during this time period. An active shooter incident, for purposes of the study, is defined as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” There were 1,043 casualties (killed and wounded, but not counting the shooters) in these 160 incidents. The Study broke down the location of these events into 11 categories, including schools (pre-k through 12) and institutions of higher education. 24.4% of these incidents occurred in an educational setting, with 16.9% (27 incidents) occurring in a pre-k to 12^th grade settling (the second highest of all 11 categories) and 7.5% (12 incidents) occurring at an institution of higher education (the fifth highest of the 11 categories). In the 12 incidents at higher education institutions:

• 60 deaths resulted and 60 individuals were wounded;
• ages of involved shooters ranged from 18 to 62, with the shooters consisting of 5 former students, 4 current students, 2 employees, and 1 patient visiting a medical center;
• 2 of the shooters were female and 10 were male;
• 5 of the 12 incidents occurred on a Friday, with 2 each on Thursdays and Mondays; and
• 4 of the shooters committed suicide at the scene, while 2 were killed by police at the scene.

The institutions involved covered the gamut, including Appalachian School of Law, Case Western Reserve University, Virginia Tech, Louisiana Technical College, Northern Illinois University, Hampton University, University of Alabama, The Ohio State University, University of Pittsburgh Medical Center, Oikos University, New River Community College and Santa Monica College. Unfortunately, these statistics highlight the importance of institutions taking steps to address this threat, including:

• developing and testing, as required by the Clery Act’s emergency notification provisions, an effective communication system so that students and staff can be alerted to an active situation;
• developing and communicating protocols, in compliance with the Clery Act and in accordance with emergency management best practices, to be followed in the event of an incident, including protocols developed in conjunction with local law enforcement for a coordinated response;
• training appropriate personnel on identification of risk factors and appropriate responses, and developing an appropriate threat assessment process to identify and evaluate persons of potential risk within the institutional community.

Last week, an anonymous Stanford University publication called The Fountain Hopper gained the attention of not only Stanford students, but admissions officers nationwide, when it disseminated a communication encouraging students to demand access to their purportedly confidential admissions files pursuant to the federal Family Educational Rights and Privacy Act (FERPA).  Published accounts indicate that as many as 700 Stanford students have submitted such inspection requests, and other institutions are beginning to receive them as well.   Though institutions have always been aware that FERPA provides students a right of inspection, this is the latest example of a circumstance in which the statute may require disclosure of information that institutional personnel have assumed to be confidential.  FERPA affords students the right to inspect and review their "education records."  The term "education records” is very broad, and, subject to certain exceptions, includes information recorded in any form that is directly related to an identifiable student. Of particular relevance to the Fountain Hopper initiative, there is no blanket exemption for admissions records and, accordingly, a student will have the right to inspect and review them unless a particular exception applies.  There are at least two specific exceptions that could, potentially, narrow the scope of admissions records that must be made available in response to an inspection demand.    First, although considered "education records," letters of recommendation are not available for inspection if the student has prospectively waived, in writing, his or her right to review them (as, for example, may occur in the Common Application). Second, the term "education records" does not include personal notes of an institutional employee, provided that the notes are made and kept by the employee solely for use as a personal memory aid, and are not accessible or revealed to anyone else, other than a temporary substitute for the employee.   Of course, this exception likely will not apply to most evaluative notes typically made by admissions officers, because those notes are placed in applicant files and available to other admissions personnel.  However, if individual admissions officers keep separate personal notes and do not reveal them further, those notes would not be subject to review.  A few related considerations: 

?          FERPA is not a records retention statute.  As a result, institutions are free to promulgate their own retention and destruction policies for admissions files, and FERPA does not prohibit an institution from destroying the admissions file of an admitted student at the time of enrollment (or a specified time thereafter), provided that the student has not previously demanded inspection of the file. (FERPA’s implementing regulations explicitly provide  that an institution “shall not destroy any education records if there is an outstanding request to inspect and review the records.”) Of course, any retention/destruction policy must consider all of the relative benefits and risks of retaining or destroying the records to which they pertain. 

?          FERPA’s inspection right applies only to students who are, or have been, in attendance at an institution.  Among other things, this means that students who were denied admission to an institution, or who were offered admission but never attended the institution, need not be provided the opportunity to inspect that institution’s admissions file on them. 

?          Finally, the inspection right granted by FERPA is just that – a right to “inspect.”  Unless an institution has otherwise committed to doing so (e.g., by way of institutional policy), it is not required to provide copies of records to a student unless the failure to do so would effectively preclude the student’s ability to review the records (for example, because the student is geographically remote).  Even then, an institution may satisfy its obligation by making alternate arrangements for inspection and review (for example, by finding a location proximate to the student’s place of residence at which records will be made available).

Late last week, a Special Report on Rape and Sexual Assault Victimization Among College-Age Females (“Report”), for the period 1995-2013, was issued.  The results are based on information taken from the U.S. Department of Justice (Bureau of Justice Statistics’) National Crime Victimization Survey (“NCVS”).  Some of the results reflect notable differences from two other recent surveys studying rape and sexual assault in the general college age population – the National Intimate Partner and Sexual Violence Survey (“NISVS”) and the Campus Sexual Assault Study (“CSA”) – which the Report attributes to differences in the context and scope of these three surveys (the NCVS is a survey about crime while the NISVS and CSA surveys are presented in the context of public health); in definitions used;  in how questions are worded; and in mode and response rates.  However, a key element of the NCVS study is that it compares responses between “students” and “non-students,” while the other surveys do not.  As a result, despite any questions that may be raised about the differences in gross outcomes when compared to the NISVS and CSA surveys, the NCVS’ comparative information based on student status should be unaffected by methodology differences. Among the results of this Report:

• From 1997 to 2013, college age females (those ages 18-24) had higher rates of rape and sexual assault than females in other age groups (4.3 victimizations per 1,000 compared to 1.4 for females 12-17 and 25 or older)
  • And, for the 1995-2013 period, nonstudent college age females were 1.2 times more likely to experience rape and sexual assault victimization than students in the same age range, with the rate of completed rape 1.5 times higher among nonstudents;
  • For that same time period, nonstudent college age females were 1.6 times more likely to experience victimization across all types of violent crime than their student counterparts;
• Rape and sexual assault victimization was more likely to occur at or near the victim’s home for nonstudents (50% of the time) than students (38% of the time), but more likely to occur at or near the home of a friend/relative/acquaintance of a student (29% of the time) than a nonstudent (17% of the time);
• The rate at which a weapon was involved was about the same for students (11%) and nonstudents (12%);
• College age victims knew their offender at about the same 80% rate regardless of their student status, although for students the offender was more likely (50% of the time) to be a well-known or casual acquaintance than for nonstudents (37% of the time), while the offender was more likely to be an intimate partner (a former or current spouse, boyfriend or girlfriend) for nonstudents (34% of the time) than for students (24% of the time);
• In the overwhelming majority of cases, there was a single offender (95% of the time in student victimizations and 92% of the time in nonstudent cases);
• The age of the offenders was also similar regardless of student status: for students, 51% of offenders were 21-29 and 23% were 30 or older, while for nonstudents 53% of offenders were 21-29 and 23% were 30 or older;
• In the case of students, it was believed in 47% of the cases that the offender was under the influence of alcohol or drugs and in only 25% of the incidents was that not believed to be the case (the rest were unknown), while among nonstudents, offenders were believed to be under the influence of alcohol or drugs 40% of the time and not so in 36% of the incidents;
• The results showed that students were less likely to report to the police (reporting in 20% of the cases) than nonstudents (reporting in 33% of the cases);
  • Among the reasons for not reporting: it was considered a personal matter (26% for students, 23% for nonstudents), it was not important enough to the victim (12% for students, 5% for nonstudents), the victim did not think police could or would help (9% for students and 19% for nonstudents), the victim did not want to get the offender in trouble (10% for each), and the victim feared reprisal (20% for each);
• There was little difference in the (very low) proportion of student (16%) and nonstudent (18%) victims who received assistance from a victim services agency;
• For the period, there was no significant difference in the victimization rates of student and nonstudent rapes and sexual assaults among Black non-Hispanics, Hispanics, or persons of other races, but the rate of victimization among White non-Hispanic females was 1.4 times higher for nonstudents (rate of 9.2 per 1,000) than White non-Hispanic students (6.7 per 1,000);
• The rate of victimization was 1.6 times greater among nonstudents in the 18-19 age group than for students in that group, 1.5 times higher for nonstudents in the 20-21 age group compared to students, but there was a slightly higher victimization rate among students (6.0 per 1,000) than nonstudents (5.4 per 1,000) in the 22-24 age group;
• Females students in the South had the lowest victimization rate (4.7 per 1,000), while the Northeast was at 5.2, the West was at 5.9 and the Midwest was at a much higher rate of 8.3.  For nonstudents, the rate for the South was 6.5, the Northeast was 4.1, the West was 8.0 and the Midwest was, again the highest, at 11.0;
• In urban areas, nonstudents had a victimization rate that was 1.3 times higher than students (8.7 vs. 6.6); in suburban areas the rates were the same (6.0); and the victimization rate for nonstudents was almost twice that of students (8.8 vs. 4.6) in rural areas.

The numbers contained in the Report are troubling on many levels - whether it is the overall level of sexual assault and violence, the low level of reporting by victims, or the even lower level of assistance secured from victim services agencies.  About the only thing the numbers don’t demonstrate is that a college age female student is at greater risk than a nonstudent.  While the Report indicates that a female college aged student is marginally “safer” than her nonstudent counterpart, there is still much more that needs to be done – on campus and off – to combat rape and sexual assault.