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.

New York’s proposed legislation contains extensive provisions dealing with victims’ rights. Specifically, Section 6442 of the legislation requires adoption of a Victim and Survivor Bill of Rights that provides for the right to:

1. Make a report to local law enforcement and/or State Police 2. Have disclosures of sexual violence treated seriously 3. Make a decision about whether or not to disclose a crime or incident and participate in the conduct of the criminal justice process free from outside pressures from college or university officials 4. Be treated with dignity and receive from officials courteous, fair and respectful health care and counseling services 5. Be free from any suggestion that the Victim/Survivor is at fault when these crimes and violations are committed or should have acted in a different manner to avoid them 6. Describe the incident to as few individuals as practicable and not be required to unnecessarily repeat a description of the incident 7. Be free from retaliation by the institution, the accused and/or their friends, family and acquaintances 8. Exercise civil rights and practice of religion without interference by the investigator, criminal justice or conduct process of the institution.

By and large, these provisions reflect best practices, and most institutions would say that their processes already include these principles.  However, there is a real and consequential difference between an understanding that an approach is best practice and a statutory obligation.  In several instances, we believe institutions would benefit from additional direction and guidance in order to fully understand what the bill intends to impose as a matter of legal mandate. For example, Item 4 above could be read as creating a “right” that victims receive from their institution “health care and counseling services,” and that these services must be “courteous, fair, and respectful” to victims/survivors.  However, some institutions do not provide counseling and/or health care services to any students, and the question is whether this legislation would require them to do so.  We suspect not, and rather the likely intent is to ensure that if these services are provided to students generally, the service providers are sensitive to victims/survivors’ needs.  Nonetheless, given the language used, clarification that the legislation is not mandating that institutions provide these services (or, in the alternative, that it is) would be useful. Items 5 and 6 are certainly understandable as best practices, but, as statutory obligations, they may cause consternation, at least without further guidance.    Is asking a victim how much he or she had to drink “suggesting” the victim is at fault (even though that information can be crucial to determining whether a victim was incapacitated)?  At what point does going back to a victim with follow up questions to make sure the institution has a complete and accurate picture of events become “unnecessary” and subject the institution to a claim that this provision has been violated?  Again, these concepts largely reflect best practices, but when included as part of a statutory scheme that presumably creates legal rights, and potential claims, their inclusion without more direction is likely to cause implementation problems. With respect to Item 7, while every institution should take steps to protect against retaliation, no institution can guarantee that retaliation will not occur, especially retaliation by an accused’s friends or family who might have no direct connection to the institution and therefore are beyond the institution’s control (other than to bar these individuals from campus, but, of course, this does nothing to stop electronic or other retaliatory communication).  Yet this provision could be read as literally requiring the institution to provide that the victim will be free from that retaliation. Finally, the reference to the “practice of religion” in Item 8 could benefit from some further explanation.  We suspect the intent is to ensure that one’s exercise of religious beliefs is not used to frustrate full access to the investigatory and adjudicatory processes, such as by scheduling an interview or hearing on an individual’s Sabbath. Section 6442 also provides that an institution “shall list the following options in brief” -- presumably as something separate from the Bill of Rights but the legislation does not explicitly so state -- and make clear that these options can be pursued by a victim simultaneously:

1. Receive resources, such as counseling and medical attention 2. Confidentially or anonymously disclose a crime or violation 3. Make a report to an employee with the authority to address complaints, including the Title IX Coordinator, “a student conduct employee,” University police or campus security, or family court or civil court 4. Make a report to local law enforcement and/or state police

In Section 6443, the legislation requires that each victim/survivor be provided with the following information (presumably upon their making a report), even though it is largely a repeat of what is in the Bill of Rights:

1. The right to notify local law enforcement or the State Police 2. The right to report confidentially to institutional officials, who can assist in obtaining services for victims/survivors 3. The right to disclose confidentially to and obtain services from New York State, New York City and County services; 4. The right to report to institutional officials who can offer privacy and can assist in obtaining resources 5. The right to file a criminal complaint with University Police or campus security 6. The right to file a report of “sexual assault, domestic violence, dating violence and/or stalking” and the right to consult with the Title IX Coordinator, which  reports are to be investigated in accordance with the institution’s policy and “a victim/survivor’s identity shall remain private at all times if said victim/survivor wishes to maintain confidentiality” 7. When the accused is an employee, the right to report the incident to Human Resources or the right to request that a confidential or private employee assist in reporting to Human Resources.  Disciplinary proceedings are to be conducted in accordance with any collective bargaining agreement.  If the accused is an employee of an affiliated entity or a vendor, institutional officials are to assist in reporting the matter to that affiliated entity or vendor and if necessary “assist in obtaining a persona non grata letter, subject to legal requirements and college policy.” 8. The right to withdraw a complaint or involvement from the institutional process at any time

Some of these items don’t directly involve the institution – such as the victim’s right to obtain services from the State of New York, the City of New York and “County services.”  It is not quite clear why this is made an institutional obligation, or how an institution is even to comply with it when the services referenced are not defined.  In a similar vein, Item 5 refers to the “right to file a criminal complaint … with campus security.”  At many institutions, members of campus security are not actually sworn law enforcement officers, so they are not in a position to accept a criminal complaint for filing.  Likely, this section of the legislation was intended to apply in situations where campus police/security have that authority, and was not intended to require campus security forces to otherwise purport to accept criminal complaints; however, clarification in this regard would be helpful. Of more significance is Item 6 from Section 6443, which suggests that a victim has an absolute right to report and have their identity kept confidential.  Item 8 likewise creates the impression that a victim has complete and total authority to cease an investigation or disciplinary process. These requirements create either an actual conflict with Title IX, which we doubt was the intent, or, at least, potential confusion for everyone.  Under Title IX an institution must generally defer to a victim/survivor’s wishes regarding confidentiality, but there are some instances in which OCR allows and even  expects/requires the institution  to act despite the victim’s wishes (e.g., where there is a threat to the victim/survivor or the campus community), even if doing so might require disclosing the identity of the victim/survivor despite his/her wishes.  Section 6445 replicates the Title IX considerations in determining whether to pursue an investigation despite a victim’s wishes, but it makes no mention of disclosure of the victim’s identity.  On its face, then, this legislation could be read as prohibiting disclosure of a victim’s identity even if concerns over campus safety dictate that an institution proceed with an investigation and even if the only way to effectively do that is to identify the victim.  We doubt that the legislation intends to create this conflict, but, unless this language is modified to reconcile these obligations with Title IX, institutions may find themselves wrestling with potentially inconsistent federal and state obligations. The legislation also provides certain “protections and accommodations” for victims:

1. When the accused is a student, a “no contact Order” 2. Assistance from University Police or campus security (or other college officials) in obtaining an order of protection, or if outside of New York, an equivalent order; to receive a copy of the order and have a college or university official explain it (including the consequences of a violation) and answer questions about it; and to receive assistance from University police or campus safety to effectuate an arrest if they have arrest powers or seek local law enforcement assistance if they do not 3. If the accused is a student and presents a risk to the community, interim suspension (and other interim measures if the accused is not a student but is otherwise a community member) 4. Issuance of a persona non grata letter to non-community members who are accused 5. Reasonable and available interim measures such as accommodations that effect a change in academic, housing, employment, transportation or other applicable arrangements in order to ensure safety, prevent retaliation and avoid an ongoing hostile environment

Again, while many of these elements are already “standard issue” under Title IX, there are several that are not.  Under Item 1, the legislation appears to give the person asserting a violation an absolute right to a no contact order without any showing at all other than naming an accused, which order is without duration, and which places full responsibility on the accused to leave a public place “immediately” if the victim and accused “observe” each other there.  On its face, the provision allows no regard for the circumstances of the individuals involved, or even the campus.  On a large campus where the two individuals rarely encounter each other, this provision might not be such a concern.  But what about on a small campus where the individuals share the same major?  Surely, this provision is not intended to require that upon an unsubstantiated allegation -- instantly and permanently -- the other student is barred from all of his/her classes, eating in the one dining hall or using the one library if the accuser is there, etc.  Institutions currently have the ability to evaluate the facts and circumstances and craft a stay away solution that is fair and reasonable.  It would be a difficult and unfortunate situation if this bill intends to erase any individualized consideration.  This is a provision that requires substantial clarification in order to be practicable. Interestingly, this portion of the legislation refers to “victims and survivors,” but doesn’t identify victims and survivors of “what.”  In some places, the legislation refers to victims and survivors of sexual assault (and domestic and dating violence and stalking) and in other places to victims and survivors of the seemingly broader category of “sexual violence,” and in yet other places, like here, to neither – just victims and survivors.  Again, more clarity in the final legislation will only help everyone involved.

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.

Governor Cuomo has signed into law amendments to New York’s Campus Safety Act requiring institutions to notify law enforcement within 24 hours after receipt of a report of a violent felony or a report that a student residing in institutional housing is missing. Under prior law, such reporting was not required. Instead, institutions were obligated only to adopt and implement plans providing for the investigation of such incidents. As noted in a prior post, the legislation provides that institutions’ reporting obligations are subject to the rights of sexual assault victims under federal law to decide whether or not to report such incidents to law enforcement. Governor Cuomo’s approval memorandum issued in connection with the bill reiterates that the law will not alter victims’ rights under federal law, and further indicates that he signed the bill based on the legislature’s agreement to pass further legislation “making clear that sexual assault victims will retain the right to choose whether to report a crime to law enforcement.”

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).

In states such as New York, where local governments and public schools are funded by taxes on real property, exemptions are often highly scrutinized by assessors and taxpayers alike.  However, the exemption provided to nonprofit corporations serving the public welfare, such as colleges and universities, hospitals and churches, always appeared inviolate.  The logic is really quite simple - imposing real property taxes on a nonprofit corporation (particularly one with large land holdings such as a university) would increase its costs and diminish the level of services it could provide, thereby harming the public welfare.  However, in Maine, the Governor is proposing a budget that would allow communities to tax certain larger not-for-profits with valuations greater than $500,000, such as colleges, universities and hospitals.  Specifically, the proposal would permit communities to tax nonprofit organizations at 50 percent of the property tax rate for assessed value above $500,000.  If passed, the proposal would have broad effects.   First, communities would be required to determine the actual fair market value of the real property owned by these nonprofit institutions.  Since these properties have always been exempt, assessors did not always analyze the numbers.  This process alone would likely lead to significant litigation separate and apart from any litigation challenging the legality of the proposal itself.  Second, the proposal could damage relationships between these institutions and their host communities.  For example, many colleges and universities make volunteer "host community" payments to the municipalities in which they are located, and changes such as this would certainly end those.  Finally, the proposal would impact the level of services provided by the nonprofits - to what extent remains unknown, but there would be an impact. No doubt that those states who rely on property taxes, such as New York, and nonprofits everywhere, will be watching this play out in Maine.  Only time will tell the breadth of the fallout.