Higher Education Law Report

Under Title IX, the concept of “responsible employee” has a great deal of significance, as recently reaffirmed by OCR in its Questions and Answers on Title IX and Sexual Violence (Q&A), and previously reported in this blog. OCR deems an institution to have notice of student-on-student sexual harassment and/or misconduct if a “responsible employee” knew, or in the exercise of reasonable care should have known, that harassment/misconduct occurred.  And, of course, it is that knowledge that triggers an institution’s obligation to take appropriate steps to investigate and, as appropriate, end and remedy that harassment/misconduct.  Responsible employees also have the initial obligation to report incidents of sexual harassment/misconduct to the Title IX coordinator (or other appropriate designee). So who is a “responsible employee” in the eyes of OCR?  While OCR’s Q&A may provide some clarification of this very significant issue, it continues to leave a number of unanswered questions for colleges and universities. At one place in its Q&A, OCR provides that a responsible employee is any employee:

(a)  who has the authority to take action to redress sexual harassment/misconduct;

(b)  who has been given the duty of reporting incidents of sexual harassment/misconduct or any other misconduct by students to the Title IX coordinator or other appropriate designee; or

(c)  who a student reasonably believes has this authority or duty.

(The standard provided in the Q&A actually refers to “sexual violence,” not sexual harassment/misconduct, but in a note OCR makes it clear that the same standards apply to sexual violence and “other forms of sexual harassment,” which would include sexual assault.  We use the broader reference to sexual harassment/misconduct for this discussion.)  This first prong of this definition seems clear, and since institutions in the first instance have the ability to determine who they give the authority to take action to redress sexual harassment/misconduct, this prong seemingly provides an institution with some latitude to self-determine who is a responsible employee and therefore whose notice of an incident triggers the institution’s obligation to act. There is less clarity around the second prong of the definition.  On its face, the Q&A provides that a responsible person is someone “given the duty of reporting…to the Title IX coordinator.”  This reference – “reporting … to the Title IX coordinator” – is pretty precise and could be read as suggesting that someone whose duty is to report misconduct, but not to the Title IX coordinator, is not a responsible employee.  Later in the Q&A, however, there is a lengthy discussion regarding RAs (Resident Assistants/Advisors). In that discussion, OCR seems to say that an individual who has a duty to report misconduct of any kind that violates school policy (e.g., drug and alcohol violations, etc.), regardless of to whom they are obligated to report it (the Title IX coordinator or someone else), is a responsible employee. The Q&A also fails to define the “employee” part of the term “responsible employee.”  Is a student, who receives free room and board in exchange for “monitoring” a floor in a dormitory really an “employee” at all (for example, for Fair Labor Standards Act purposes, that student may not be considered an “employee” despite their assignments)?  Leaving aside the question of whether someone is “responsible” (discussed above), OCR’s latest guidance does not tell institutions who are “employees” for this purpose. And does OCR really mean that any employee who has any “misconduct” reporting duty is a “responsible employee”?  The above referenced definition provides that someone who has been given the duty of reporting incidents of sexual violence “or any other misconduct by students” is a responsible employee.  Generally speaking, faculty at most institutions are likely to have an obligation to report plagiarism and cheating.  Leaving aside for a minute the third prong of the definition – someone who a student could reasonably believe has the authority or duty to act – does this mean that all faculty are actually responsible employees, merely because they report cheaters? We simply do not know.  Presumably, OCR intended that an employee with broad based misconduct reporting responsibilities be viewed as a responsible employee, regardless of whether they are charged with reporting directly to the Title IX coordinator or not, but just how far this definition goes remains unclear. The third prong of the definition also raises some unanswered questions.  In the first instance, the third prong suggests that when someone might only “appear” to have the requisite duty or authority to act, but really does not, an institution can protect against that person being a responsible employee by clearly indicating that he or she is indeed not a responsible employee.  For example, assuming faculty at a particular institution do not have any institutionally-assigned duty to report any kind of student misconduct and/or authority to redress sexual harassment/misconduct, and therefore do not fall within the first two prongs of the definition, it might nonetheless be reasonable for a student to believe that they do, thereby making them responsible employees under the third prong.  If institutional policy clearly and visibly provides that faculty are not responsible employees, it would seem that a reasonable basis to believe that they are would no longer exist, the result being that a faculty member’s awareness of sexual harassment/misconduct would not necessarily constitute institutional knowledge and trigger any obligation to act.   Of course, institutions must determine whether they are better off attempting to exclude faculty (or any other group) from the category of responsible employee (in an attempt to avoid potential liability in the event a faculty member fails to act), or clearly including them in that category (to ensure the strongest likelihood of rooting out harassment and misconduct). What about an individual who falls squarely within the first two prongs of the definition?  Can an institution effectively remove them from the responsible employees category, simply by saying so?  There certainly are parts of the Q&A that suggest that the answer is yes.  For example, the Q&A advocates for institutions to designate individuals (beyond professional and pastoral counselors) on campus as “confidential” resources for victims, which would take them out of the responsible employee category (provided the institution provides clear notice of that fact).  In fact, the Q&A specifically contemplates that possibility for an RA, despite other misconduct reporting obligations which would seemingly place them within the second prong of the definition. But just how much latitude might an institution have in this regard?  Can it carve out of the responsible employee category all employees who otherwise have a duty to report a wide range of other types of student misconduct?  Can it effectively whittle down the category of responsible employees to just one or two specifically identified persons on campus – in an effort to limit its “knowledge” of assaults and therefore its obligation to act?  It is hard to believe that OCR would want an institution to have that much latitude, but there are mixed messages from the Q&A as to just what is permitted and what is not. Once it is finally determined who is a responsible employee, and that person becomes aware of sexual harassment/misconduct, the institution is responsible for ensuring that he or she reports to the Title IX coordinator (or other appropriate person) all relevant details about the alleged harassment/misconduct that have been provided.  This includes the names of the alleged perpetrator (if known), the student who experienced the alleged harassment/misconduct, other students involved in the incident, as well as relevant facts such as date, time, and location. In addition, colleges and universities are required by OCR to make clear (or as clear as they can, given the ambiguities in the Q&A) to all employees and students which staff members are responsible employees, both so students can make informed decisions about in whom to confide and so employees can understand their reporting obligations. Finally, this newest OCR guidance states that an institution needs to instruct responsible employees that, when talking to a student who might reveal information which he or she may wish to keep confidential, the responsible employee must in effect “Mirandize” the student before that information is revealed.  That is, the responsible employee needs to (1) warn the student of the employee’s obligation to report any information the student reveals to the Title IX coordinator, (2) explain to the student his or her option to ask that the institution nonetheless consider maintaining the confidentiality of that information, but that the institution may not be able to guarantee confidentiality (more about this in a future post), and (3) advise the student of the ability to instead share this information with counseling, advocacy, health, mental health or other sexual assault-related resources who are not obligated to report it to the Title IX coordinator. Clearly, a basic task for every institution is to make a reasoned determination concerning who it considers id a responsible employee (and who it does not) and to make that determination well known.  Then, it is incumbent on the institution to make sure that responsible employees fully understand – and comply with – their obligations. No doubt the intent of OCR’s Q&A was to provide clarifying and useful guidance to institutions.  Regrettably, as has often been the case with OCR guidance in this area, the Q&A leaves a number of unanswered questions.

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

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

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

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

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

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

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

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

With students, faculty and other groups increasingly vocal about institutional responses to campus rape and sexual assault, President Obama has announced the creation of The White House Task Force on Protecting Students from Sexual Assault.  The group will include cabinet level leaders and US Attorney General Eric Holder. Under Title IX, colleges and universities are required to respond promptly to reports of campus rape and sexual assault.  An increasing number of students have filed federal claims of sex discrimination, alleging that their institution had not adequately responded in cases where they have been sexually assaulted.  At the same time, many college administrators have expressed frustration with the US Education Department’s Office for Civil Rights, finding that OCR does not fully understand the realities involved in addressing sexual assault on campuses, particularly when it comes to the student disciplinary process, and that there is confusion regarding exactly what OCR expects of them. The President has charged the Task Force with developing “best practices” for preventing and responding to rape and sexual assaults; to assure compliance with existing federal laws governing colleges; and to make available to the public individual college’s compliance with these laws.  The President also asked the Task Force to improve coordination among federal agencies dealing with this issue, and to increase the transparency of federal enforcement efforts. In announcing the Task Force, the President indicated that the Task Force will look for ways to work collaboratively with colleges to develop these recommendations, though the Task Force will not include any members of the higher education community. The Task Force’s recommendations are to be submitted to the President in 90 days, and a full report on implementing those recommendations is due in one year. Bond will be following closely the work of the Task Force, and will keep clients updated on developments.

Following the lead of North Carolina last year, members of the Virginia legislature have  become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings. With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings.  Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf. Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student's expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to "fully participate" during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court.  If this represents the start of a trend in higher education disciplinary law, it is a concerning one.  Colleges and universities do not design their disciplinary systems to function with all of the technicalities of a criminal process, and with good reasons. Campus disciplinary proceedings are designed to be educational in nature, and a core component of the learning experience is a student's ability to speak on his or her own behalf, to take responsibility for his or her behaviors, and to learn from them. Much of this will be lost in the event that students are permitted to have attorneys speak for them throughout the disciplinary process. Reasonable minds can, of course, differ as to whether the foregone educational benefit is outweighed by the need to protect accused students in the context of potentially career-altering additions to their records; however, attorney mandates have other, more significant and less debatable, adverse implications.  Ironically, proponents of these legislative efforts have characterized them as “leveling the playing field” between accused students and their institutions, but the presence of active defense counsel would almost certainly swing the balance in the opposite direction, making it both more difficult and more costly for colleges and universities to regulate conduct on their campuses.  Indeed, the presence of counsel for accused students may well lead an institution to retain counsel on behalf of the disciplinary panel and/or institutional representatives presenting charges, and to allow student complainants to retain private counsel, turning the entire process into a hypertechnical, confrontational and protracted legal proceeding. The potential costs to institutions, both financial and in terms of the functioning of their disciplinary processes, are not insignificant. It may be that the courts and regulatory authorities in jurisdictions adopting attorney mandates will bring some degree of reasonableness to the analysis; for example, it is possible to argue that the right for an attorney to “fully participate during any disciplinary procedure” means that attorneys can only participate to the extent that an institution’s process otherwise allows any advocate to function in the place of an accused student, and/or that institutions may have procedures that limit the role of counsel (e.g., by precluding cross-examination) provided that the procedural limitations are applied even-handedly.  However, this is far from clear, and appears to be contrary to the expectations of those who have sought to implement these reforms. Perhaps more troubling, a mandate to allow active attorney advocacy in on-campus proceedings raises the prospect of serious inequities in the disciplinary process.  For example, although the Virginia legislation (like the North Carolina legislation before it) permits the use of "non-attorney advocates," affluent students who are able to retain the highest quality (and correspondingly highest-priced) counsel may have a greater chance of successfully defending disciplinary proceedings and avoiding responsibility for their actions than will students from underprivileged backgrounds. Similarly, these requirements may have chilling effects on institutions’ ability to address allegations of sexual misconduct, where institutions are required to afford complainants rights equivalent to those granted to accused students. Although this may not translate into a requirement that institutions furnish counsel to complainants in such cases (as noted above, accused students are required to pay for their own counsel), many complainants may not have the financial wherewithal or inclination to retain counsel in such circumstances, so as to enable them to have their accounts presented as effectively as those of their alleged assailants or harassers.  They may also be understandably fearful of the prospect of being cross-examined by defense counsel (directly or, as is common, through the hearing body) in the manner that often proves traumatic in criminal processes. If this increases the reluctance to report sexual misconduct with which so many institutions already struggle, it will be a truly unfortunate byproduct of these legislative efforts to protect student rights. None of this is to say that accused students are not entitled to a process that is fundamentally fair when facing charges of misconduct; this has always been the law, and students sanctioned by institutions already have the right to seek judicial review of disciplinary determinations in most jurisdictions. Thus, colleges and universities are already accountable for their processes, and should of course take steps to ensure that their proceedings are conducted fairly and even-handedly. Moreover, if institutions are concerned that accused students need legal advice to protect their interests, they always have the option to design their procedures to permit (as many do) the presence of counsel to provide quiet advice to the accused.  However, “lawyering up” the entire process by requiring institutions to permit full and active advocacy by counsel would seem, on the whole, to be counterproductive.

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