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.

In the Spring of 2014, MIT launched a survey of all of its undergraduate and graduate students (just under 11,000), related to issues of student sexual assault.  More than 3,800 undergraduate and graduate students responded, or about 35% of the institution’s total student population.  (This 35% consisted of 46% of surveyed undergraduate females, 35% of undergraduate males, 37% of graduate females and 30% of graduate males.)  As noted by MIT Chancellor  Barnhart last week in the release of the survey results, “[b]ecause the survey was not a random sample and was voluntary, and the topic of unwanted sexual behaviors is focused, we know the results reflect a degree of self-selection. Since it is impossible to tell how this may have altered the results, it would be a mistake to use these numbers to generalize about the prevalence of unwanted sexual behavior in the lives of all MIT students.”  Nonetheless, she noted, the survey “clearly tells us that, like many other colleges and universities, we face a serious problem.” While the full results of the survey are available online, some of the many interesting survey results are noted below:

• 14% of undergraduate females indicated that they had experienced stalking, being followed and/or receiving repeated unwanted messages/texts/emails that made them uncomfortable (2% of undergraduate males reported similar experiences);
• 10% of undergraduate females reported experiencing a sexual assault and 5% reported having been raped (undergraduate male responses were 2% and 1% respectively);
• 72% of all respondents indicated that another MIT student was responsible for the unwanted sexual behavior (which was not limited to sexual assault or rape) they experienced.  For 98% of the females, the perpetrator was a male; for male respondents the perpetrators were males in 35% of the instances and females in 67%.
• 40% of female and male undergraduate respondents indicated that the perpetrator was a friend;
• While 63% of those experiencing an unwanted sexual experience reported it to someone (90% to a friend, 19% to family, 13% to medical personnel), only 5% reported the experience to someone in an official capacity;
• Respondents who indicated that they had experienced unwanted sexual behavior were asked of any thoughts or concerns that came to mind in deciding whether to share their experiences.  Of those responding:
  • 72% did not think the incident was serious enough to officially report
  • 55% indicated that it was not clear that harm was intended
  • 47% did not want any action to be taken
  • 44% felt that they were at least partly at fault or it wasn’t totally the other person’s fault (results from another portion of the survey indicated that 20% of female undergraduate respondents and 25% of male undergraduate respondents “agreed” or “strongly agreed” with the statement: “When someone is raped or sexually assaulted, it’s often because the way they said ‘no’ was unclear or there was some miscommunication.”);
• 53% of respondents (with the same percentage for both females and males) “agreed” or “strongly agreed” that “Rape and sexual assault can happen unintentionally, especially if alcohol is involved.”
• 73% of female respondents and 76% of male respondents “agreed” or “strongly agreed” that they feel confident in their ability to judge if a person is too intoxicated to consent;
• With respect to bystander activity, 91% of females and 89% of males “agreed” or “strongly agreed” that their friends would watch out for them if it seemed like something bad might happen to them and that more than 9 out of 10 respondents  “agreed” or “strongly agreed” that most MIT students would respect someone who did something to prevent a sexual assault.  Yet 56% of respondents who knew a perpetrator did not confront that person about their behaviors or take any action, and 50% of females and 59% of males “do not usually try to distract someone who is trying to take a drunk person to do something sexual.”

As noted, the voluntary nature of the survey and its narrow focus make it hard to know why students self-selected in or out of the survey and whether it was in a way that might bias the results.  Nonetheless, the University noted that while that does mean that the rates based on those who responded cannot be extrapolated to the MIT population as a whole and cannot be validly compared to results from other surveys, it does not make the results any less accurate.  Nor does it make those results any less important. In the coming 12-18 months, either as a result of the federal government’s “encouragement” that institutions undertake surveys or pending legislation that might require them (e.g., Senator McCaskill’s Campus Accountability and Safety Act we undoubtedly will see many more colleges and universities engage in similar efforts in as they attempt to better understand the dynamics on their campuses, and how they can better address this issue.

A few weeks ago, Inside Higher Ed issued its 2014 Survey of College and University Human Resources Officers.  Like Inside Higher Ed’s other surveys, this one provides very interesting reading. Among the topics covered in this survey of 330 responding institutions are several questions pertaining to adjunct employment.  Given the continued union organizing efforts among adjuncts, these questions are particularly timely.  Only 20% of all respondents “strongly agreed” that their institutions fairly compensated adjuncts, down from 24% in 2013.  (The full survey provides a further breakdown of all survey results by whether the responding institutions are public/private and by degrees awarded.)  Only 19% “strongly agreed” that an appropriate benefits package was provided to adjuncts.  (For example, only 27% of respondents indicated that their institutions provide health insurance benefits for adjuncts.)  An even lower number, 15%, “strongly agreed” that their institution provides appropriate job security and due process protections for adjuncts.  Yet, perhaps surprisingly given these results, only 4% “strongly agreed” (with another 8 percent “agreeing”) that unions help adjuncts secure better wages, benefits and working conditions (73% “disagreed” or “strongly disagreed” that unions help). The Survey also focused on retirement concerns.  Sixty-four percent of respondents were “very concerned” or “moderately concerned” about faculty working past retirement age, with 54% concerned that their institutions lacked sufficient retirement incentives for eligible faculty (only 18% “strongly agreed” that their institutions offered sufficient phased retirement options for faculty).  Not surprisingly, 67% were “very concerned” or “moderately concerned” about health care costs for retirees. Some of the benefits information was also very interesting.  While 64% of institutions reported allowing telecommuting, that number was based on 87% of responding public institutions allowing it, and only 41% of private institutions.  As to be expected, 93% of all responding institutions provide financial support for employee enrollment in higher education courses, but only 81% provide it for children of employees (69% of public institutions and 95% of private institutions).  Health care coverage for opposite sex domestic partners is only provided by 58% of the responding institutions, with 55% of institutions providing other benefits to same sex domestic partners.  Thirty-three percent of respondents (47% of public institutions and 18% of private institutions) provide onsite child care for employees. With respect to criminal background checks, 81% of all institutions (83% public, 79% private) reported conducting these checks as part of the faculty hiring process.  A slightly higher amount, 89%, reported doing criminal background checks on staff. Other topics covered by the Survey include sexual harassment efforts and non-discrimination policies, hiring and training practices, and social media policies. The Survey is well worth a close review.

Back in September, we reported that the Center for Disease Control (CDC) had issued guidance to colleges and universities on how to respond to the spread of Ebola in West Africa.  The guidance included suggested precautions with respect to (a) study abroad programs, research and other education-related travel to the region, and (b) individuals arriving on campus from the region or otherwise known to have been exposed to Ebola. Given the ongoing concerns and availability of more guidance and information relating to Ebola, we are offering this update with our own recommendations to ensure that you have current information and consider the aspects of this health concern from the perspective of a college or university. According to the CDC, a person infected with Ebola is not contagious until symptoms appear. Symptoms may appear anywhere from 2 to 21 days after exposure to Ebola but the average is 8 to 10 days. The signs and symptoms of Ebola typically include:

• Fever (greater than 38.6°C or 101.5°F) • Severe headache • Muscle pain • Vomiting • Diarrhea • Stomach pain • Unexplained bleeding or bruising

Diagnosing Ebola in a person who has been infected for only a few days is difficult because the early symptoms, such as fever, are not specific to Ebola infection. However, if a person has symptoms of Ebola and had contact with blood or body fluids of a person sick with Ebola, contact with objects that have been contaminated with blood or body fluids of a person sick with Ebola or contact with infected animals, the individual should be isolated and public health professionals notified. Samples from the individual can then be collected and tested to confirm infection. The CDC’s recommendations for student health centers in responding to potential Ebola exposure and managing individuals presenting with symptoms consistent with Ebola disease are the same as those for other US health care workers and settings. As a planning step, colleges and universities should review and consider utilizing the American College Health Association Emergency Preparedness Planning Considerations for College Health Centers Regarding Ebola Virus Disease:

1. Is your campus emergency response plan up to date so it can be activated if needed to respond to a case of Ebola on campus or in the local community? Is it coordinated with the local public health department on a community response to a case of Ebola?  

2. Does your campus have a communications plan and team in place to respond to the communications need if a case were to emerge on campus, in the community, or at another institution? Is the communications plan coordinated with the local community so that your campus would be informed if a case emerges in the community, allowing communication to students and parents?  

3. If the public health department orders a quarantine for a high risk exposure, does the campus have a location and plan to provide food and clothing to a quarantined person? Does the campus have a mechanism (qualified contractor) in place to dispose of waste?

 4. Is the student health center screening all patients for travel in the past 21 days? Are there plans in place to quickly respond to an ill student with a travel history from an Ebola affected area? What about other emerging pathogens?

 5. Is there a mechanism to identify and contact students, faculty, and staff who are returning to campus from an Ebola affected area and refer appropriately to the public health department for monitoring?

 6. Who is responsible for monitoring individual and group institutional travelers? Is there a policy and/or mechanism in place to restrict travel based on the CDC travel warning?

In keeping with these recommended planning steps, institutions should consider the following actions:

• Ensure that student health center staff are aware of exposure risks, signs and symptoms      of Ebola and are prepared to follow recommendations in the CDC Health Advisory: Guidelines for Evaluation of US Patients Suspected of Having Ebola Virus Disease.
• Consider providing information to the campus community with recommendations for people who have recently arrived from countries where Ebola outbreaks are occurring  and provide specific Ebola education to all people who have recently arrived from countries where outbreaks are occurring in accordance with the screening procedures.
• Continue to monitor the countries of concern in terms of Ebola outbreak. Here are the current CDC travel notices related to Ebola      even if travelers do not plan to be in contact with people infected with the virus:

Warning - Avoid nonessential travel: Ebola in Liberia, Guinea and Sierra Leone Alert - Practice enhanced precautions: Ebola in Democratic Republic of the Congo Watch - Practice usual precautions: Ebola in Nigeria

• Based on current travel notices consider making adjustments to programs for the current semester and upcoming spring semester which would involve travel by students and faculty to these regions.
• Identify students, faculty, and staff who have been in countries where Ebola  outbreaks are occurring within the past 21 days and conduct a risk      assessment with each identified person to determine his or her level of risk exposure (high- or low-risk exposures, or no known exposure). Consult      the CDC’s algorithm for evaluation of a returned traveler:

The following steps are consistent with current CDC guidance:

• If the student, faculty, or  staff member has had NO symptoms of Ebola for 21 days since leaving a West African country with Ebola outbreaks, they do NOT have Ebola. No further assessment is needed.
• If the student, faculty, or staff member has had a high or low-risk exposure, state or local public health authorities should be notified, and school officials should consult with public health authorities for guidance about how that person should be monitored. Anyone with a potential exposure should receive thorough education about immediately reporting symptoms and staying away from other people if symptoms develop.
• In the event that a student, faculty, or staff member who has had a high or low-risk exposure develops symptoms consistent with Ebola, the person should be medically evaluated while following recommended infection control precautions. Guidance is available in the CDC Ebola Virus Disease Information for Clinicians in U.S. Healthcare Settings. Public health authorities should be notified.
• If the student, faculty, or staff member displays no symptoms and presents no known exposure risk, institutions are advised to instruct the individual to self-monitor through temperature and symptom reporting until the end of the 21 day period, and to report immediately if symptoms appear.

Note that the CDC is still not recommending that colleges and universities quarantine individuals based solely on travel history. The system presently relies on individuals, including college students, to self-monitor for the onset of symptoms and to take immediate steps to self-report. This raises the questions as to whether the self-monitoring/reporting system is reliable enough or whether other steps should be considered to protect the campus community. Reasonable minds may differ as to whether all return travelers are reliable enough to self-monitor without some other level of mandatory oversight. One option, for example, may be for the Campus Health Center to actively participate in the monitoring of individuals to ensure accurate assessments and timely reporting and action if the individual develops symptoms.

• In the event that a potential case is  identified, isolate the individual pending diagnostic testing.
• Although not a full list of precautions, student health center clinicians should be sure to follow these steps when caring for someone who is sick or may be sick with Ebola:

• Separate the sick individual in a private room with its own bathroom.
• Use proper infection prevention and control measures; standard, contact, and droplet precautions are recommended if Ebola is suspected.
• Wear the right personal protective equipment (PPE), including masks, gloves, gowns, facemask and eye protection, when entering the patient care area. Before leaving the patient area, carefully remove PPE and make sure not to contaminate skin and clothing. Dispose of PPE as biohazard waste.
• After removing PPE, wash hands using soap and water (preferred) or an alcohol-based hand sanitizer containing at least 60% alcohol. Use soap and water when hands are visibly dirty.
• Notify local or state health department immediately if Ebola is suspected. The health department can provide additional guidance regarding medical evaluation or testing, if indicated.
• Follow protocols for  cleaning and disinfecting reusable medical equipment and proper disposal of needles and other disposable equipment.

The United States Court of Appeals for the Eleventh Circuit issued a long-awaited decision in the Georgia State e-reserves copyright case on October 17, 2014. The Court of Appeals reversed and remanded to the District Court for reconsideration in light of its opinion rejecting that court’s formulaic fair use analysis. In 2008, three publishers (Cambridge University Press, Oxford University Press, and Sage Publications) filed suit in the Northern District of Georgia, alleging that Georgia State University’s e-reserves system – through which students could access electronic content posted by faculty – infringed copyrights held by the publishers. In 2012, the District Court issued an order finding that the university had infringed the publisher’s copyrights in several instances, but that the fair use defense applied to the majority of the alleged infringements. The court applied the four factors of a fair use defense: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. The court granted declaratory and injunctive relief to the publishers, but ultimately found that the University was the prevailing party and awarded costs and attorneys’ fees.  On appeal, the Court of Appeals reviewed the District Court’s application of the four factors, as well as the District Court’s balancing of the outcome of the four factors, noting that because of the circumstances of this case some of the factors weigh more heavily on the fair use determination than others. Regarding the first (the purpose and character of the use) and fourth (the effect of the use upon the potential market for or value of the copyrighted work) fair use factors, the Court of Appeals affirmed the District Court’s holdings that these weighed in favor of a fair use defense. On the second factor, the nature of the copyrighted work, the Court of Appeals reversed, holding that the District Court should have evaluated each work copied to determine whether it contained “evaluative, analytical, or subjectively descriptive material that surpasses the bare facts necessary to communicate information.” If the work contained more than was necessary, then it should have weighed in favor of the publishers or been neutral, although the Court noted that this factor is largely unimportant since the works at issue are not fictional works. On the third factor, the District Court had utilized a quantitative test with respect to the “amount and substantiality taken” in relation to the copyrighted work as a whole, relying on the 10% or one chapter approach set forth in the “Classroom Guidelines” which form part of the legislative history of the Copyright Act. In rejecting that type of blanket approach, Court of Appeals found that the lower court should have applied a more individualized fair use analysis, “considering the quantity and quality of the material taken, including whether the material taken constituted the heart of the work.” The Court of Appeals emphasized that the Classroom Guidelines have never been codified and are too formulaic for a balanced fair use analysis. The Court of Appeals vacated the injunction, declaratory relief, and award of attorney's fees and costs, and remanded to the lower court for further proceedings. The Way Forward for Universities Even though this case will continue, the Court of Appeal’s ruling provides useful guidance to institutions of higher education. Specifically, a formulaic approach to fair use rather than a case-by-case inquiry opens a fair use analysis to criticism and attack. As a result, copyright policies or guidelines should require an individualized analysis of the amount taken of a copyrighted work in relation to the work as a whole, rather than simply relying on the 10% or one chapter rubric set forth in the “Classroom Guidelines.” Both the quantity and the quality of the material taken must be considered under the third factor, including whether the material taken constitutes “the heart of the work,” and whether the material used is excessive in light of the purpose of the use and the threat of market substitution.