Higher Education Report

Higher Education Report

Confidentiality and Title IX

Posted in Discrimination, Students, Title IV

doe-logoIn OCR’s April 2011 Dear Colleague Letter, OCR referenced a covered institution’s obligations in the face of knowledge of sexual harassment/misconduct and a victim’s request for confidentiality and/or that the institution not act on the report, but did not provide particularly helpful guidance on how an institution is to balance those competing concerns.  Its recent Questions and Answers on Title IX and Sexual Violence (“Q&A”) provide a little more help.

Title IX requires that an institution with notice of sexual harassment/misconduct act to end and remedy that harassment/misconduct.  Notwithstanding this obligation, OCR has made clear that it “strongly supports” a student’s interest in confidentiality and, while it recognizes that there may be instances where an institution must deny a student’s request for confidentiality in order to meet its Title IX obligations, it has now characterized those instances as “limited,” noting that even then information should only be shared with those individuals responsible for handling the institution’s response to the situation.

OCR’s Q&A confirms that when confronted with a student request for confidentiality, the institution must inform the student that honoring that request may impair the institution’s ability to fully investigate and respond to the incident (including disciplining or taking other action against a perpetrator).  As part of that discussion, the institution needs to explain to the student Title IX’s prohibition against retaliation, that it will take steps to prevent retaliation, and that it will take “strong responsive action” if retaliation occurs.

If a student still insists upon confidentiality, the institution is required to balance that request against its obligation to provide a safe and nondiscriminatory environment for all students, including the reporting student.  While not required, OCR believes that this is a determination best made by the Title IX coordinator.  The Q&A lists a number of factors to be considered in making this determination:

  • Have there been other complaints of sexual harassment/misconduct against the alleged perpetrator?
  • Does the alleged perpetrator have a history of arrests or records from a prior school indicating a history of harassment/misconduct?
  • Has the alleged perpetrator threatened further sexual harassment/misconduct against the complainant, or others?
  • Was the harassment/misconduct perpetrated by multiple individuals?
  • Does the report of harassment/misconduct reveal a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group)?
  • Was a weapon involved?
  • Are there other means of obtaining relevant information?

If an institution determines that it cannot provide confidentiality, it should inform the student prior to making any disclosure.  In addition, the institution needs to consider interim measures necessary to protect the student and ensure the safety of other students.  If the reporting individual requests the institution to inform the alleged perpetrator that he or she had asked the school not to investigate or seek discipline, the institution should honor that request and inform the alleged perpetrator that the decision to proceed is an institutional decision.

In situations where an institution determines that it can honor a request for confidentiality, the institution is not relieved of its duty to act.  There may be any number of steps an institution may take, and may have to take, without identifying the reporting individual or commencing disciplinary proceedings.  For example, the Q&A specifically references increased monitoring, supervision or security at locations or activities where the misconduct occurred; providing training and educational materials for students and staff; changing or publicizing the institution’s policies on harassment/misconduct; and conducting climate surveys on harassment/misconduct. Where many students are involved, an alleged perpetrator may be put on notice of the allegations and counseled appropriately, without revealing the identity of any reporting student.

Finally, even where confidentiality is provided, institutions must take other steps (beyond confidentiality) necessary to protect the reporting individual, including providing support services and/or changing living arrangements, course schedules, assignments or tests.

Certainly, OCR’s recent Q&A provides clearer insight into OCR’s view of requests for confidentiality (which are usually actually requests that the institution “not do anything”).  However, institutions should understand that even this amount of guidance does not answer all of the vexing questions, or insulate an institution from all possible liability, in the face of a request for confidentiality.  Unfortunately,   hindsight is 20/20.  If an institution honors a request to not proceed with disciplinary action, and if the perpetrator offends again, it may very well be that OCR (or, even worse, a jury) may conclude that the institution made the wrong call.  Conversely, if an institution pursues a perpetrator over a victim’s objections, and if the victim suffers extreme distress as a result, the institution may be found at fault for that situation.

In sum, while OCR’s guidance is helpful, the landscape remains a dimly lit path fraught with “damned if you do; damned if you don’t” eventualities.  Institutions will need to proceed with caution and with a full view of the consequences of any decision.  It pays to recall that, while OCR’s view is a major consideration, it is not the only consideration or source of potential liability or backlash.  Unfortunately, real life situations rarely reduce to simple decisions.

Is the NLRB’s Brown University Decision on Its Last Leg?

Posted in National Labor Relations Board, Unionization

nlrbThe National Labor Relations Board’s treatment of college and university students as “employees” covered by the National Labor Relations Act has been the subject of a tortured history.

In the Fall of 2000, in a case involving NYU, the NLRB held that graduate assistants could be employees under the Act and therefore subject to the Act’s protections for organizational activity and collective bargaining.  Thereafter, in a number of cases, including one involving Brown University (“Brown I”), the Board rejected arguments that the work of research assistants, teaching assistants and similar graduate student positions were closely tied to their degree requirements such that it constituted more of an educational, rather than economic relationship and concluded that graduate assistants could be employees under the Act.  Then, in 2004, in a second case involving Brown University (“Brown II”), the Board made a sharp return to its earlier position, expressly overruling NYU, and deciding that graduate student teaching and research assistants are not statutory “employees” under the NLRA.

Based on Brown II, NYU withdrew recognition from its graduate assistants who had earlier voted for representation by the UAW.  Eventually, a later group of graduate students organized again and petitioned for a union representation election at NYU in Manhattan and NYU’s then recently-acquired Polytechnic Institute in Brooklyn (separate election petitions were filed in the Manhattan and Brooklyn Regional Offices of the NLRB).  The petitions were dismissed at the Region level, without a hearing, on the authority of the Brown II decision.  The petitions were remanded for further consideration by the Board, but after a hearing, the petitions were again dismissed at the Region level on the authority of Brown II.  The Board granted a request for review of the dismissal and asked for amicus briefs on whether Brown II should be overruled, setting the stage for yet another reversal .

However, in November of 2013, NYU and the UAW reached an agreement, pursuant to which NYU agreed to recognize and bargain with the union if a majority of graduate assistants voted in favor of joining the union.  The pending Board petitions were subsequently dismissed as moot, removing at least temporarily the possibility that the Board could once again reverse course and overrule Brown II.

As we noted in an earlier post, the Board granted Northwestern University’s request for review of the recent Regional Director’s decision directing an election in a unit of grant-in-aid scholarship football players at Northwestern.  Thus it seemed the stage was set for the Board to revisit the student/employee issue yet again.

Yesterday, the Board issued a Notice and Invitation to File Briefs to interested parties in the Northwestern case.  The Notice expressly raises six questions that parties were invited to brief.  Question 2 is:

Insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis?

It is now evident that the Board indeed has found the vehicle it needs to once again flip flop on the issue of students/employees.

Responsible Employees and Title IX

Posted in Discrimination, Students, Title IX, Uncategorized

university archUnder 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.)  Continue Reading

U.S. Department of Education Reaffirms the Importance of Diversity Efforts Post- Schuette

Posted in Affirmative Action, Discrimination, Diversity

Iuniversity building5n April, the Supreme Court issued its decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s State Constitutional Amendment prohibiting, among other things, any preferential treatment on the basis of race in the admissions process at Michigan’s public colleges and universities.

Yesterday, the Department of Education responded to that decision by “confirming” that Schuette leaves intact the Supreme Court’s prior decisions recognizing that institutions may use all legally permissible methods to achieve diversity goals, noting that

[t]hese include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow form a diverse student body.

This “Dear Colleague” letter also reaffirmed the continuing impact of the Department’s previously issued “Guidance on the Voluntary Use of Race to Achieve Diversity in Postsecondary Education” and its “Questions and Answers about Fisher v. University of Texas at Austin.” 

While clearly the Department is correct that, as a legal matter, the Court’s most recent decision does nothing to directly alter the legal landscape for private institutions when it comes to promoting diversity (if for no other reason than Schuette did not present that question to the Court), it begs the question whether this decision nonetheless brings the Court just one step closer to a significant change if the question does present itself for review again.

The Assault on Sexual Assault Continues – On Both the Federal and State Levels

Posted in Discrimination, Students, Title IX

university archAs 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.  Continue Reading

Report of the White House Task Force to Protect Students from Sexual Assault

Posted in Discrimination, Sexual Assault, Students, Title IX

university building5Today 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.

NLRB Grants Request for Review of Northwestern University Decision

Posted in National Labor Relations Board, Unionization

In a not surprising development, the National Labor Relations Board announced today that it has granted Northwestern University’s Request for Review of the Regional Director’s decision directing an election among the University’s grant-in-aid scholarship football players, citing the existence of “substantial issues warranting review.”  The NLRB will later issue a briefing schedule, which will invite amicus briefs from other interested parties.

While the election among the University’s eligible student-athletes will still take place tomorrow, April 25, 2014, as scheduled, the ballots will be impounded, instead of counted, until after the NLRB issues its final decision.

A More “Militant” AAUP Coming to a Campus Near You?

Posted in Faculty, Labor, Unionization

university_PH03332IThe Chronicle has reported in the recent past about a division of views within the AAUP as to its proper focus.  In 2012, a slate of officers running under the “AAUP Organizing for Change” banner won election fairly handily (although only about 10% of the AAUP’s membership actually voted).  At the time of that election, a former AAUP Staff member described the election outcome as affecting “to a large extent, whether the association remains anchored principally to its commitment to the profession and its standards and principles or becomes an organization principally focused on a particular means—unionization—of achieving these objectives.”

This past February a slate of challengers, seeking to return AAUP to its traditional focus instead of a unionization focus, looked to unseat the “Organizing for Change” leadership.  At that time, The Chronicle reported on an interview given by Rudy H. Fichtenbaum, the “Organizing for Change” candidate  running for re-election as the AAUP’s president, in which he was said to have described “the real choice before the AAUP membership [as] whether the association would continue to build a national network of activist chapters or retreat into being a group focused on running a Washington office that weighs in on few controversies each year.”  Mr. Fichtenbaum was quoted as saying, “Our emphasis has totally been on organizing people.” Continue Reading

Michigan’s Affirmative Action Ban In Public Education Upheld By the Supreme Court

Posted in Affirmative Action

courthouse_24289004In a number of cases since Regents of the Univ. of Cal. v. Bakke, the Supreme Court has upheld in a variety of contexts the use of some degree of race based preferences in the admissions process for colleges and universities.  Although not its most recent decisions in this area, two of its most discussed decisions came out of Michigan.  In one, Gratz v. Bollinger the Supreme Court in 2003 found that the undergraduate admissions process at the University of Michigan violated the Equal Protection Clause of the U.S. Constitution by its use of race based preferences.  At the same time, it also held, in Grutter v. Bollinger, that the University of Michigan Law School’s use of race based preferences was permissible.

Following these decisions, Michigan voters adopted Proposal 2, which became Article I, Section 26 of the State Constitution.  As relevant, it provides:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Emphasis added.)

 This Proposal was challenged in two cases.  The District Court initially found that it was permissible for the voters of Michigan to adopt this constitutional amendment.  The Sixth Circuit Court of Appeals, in an original 2-1 decision and a subsequent 8-7 en banc decision, held that the Proposal was unconstitutional.  Continue Reading

Potential Institutional Liability to the Accused in Sexual Assault Cases

Posted in Sexual Assault

university buildingRecent articles and postings not only highlight the continuing focus on sexual assault cases on college campuses by the victims of those assaults, but also on the threat of litigation by those accused of the assaults.  In the past two years, at least half a dozen actions have been brought against institutions by those accused, generally alleging various issues with the handling of their cases.  A recent decision by a federal court in Ohio, in Wells v. Xavier University, illustrates institutions’ potential liability to the accused.

In this case, a student athlete at Xavier was accused, falsely he claimed, by another student of a sexual assault.  The University’s Conduct Board found the student responsible for a “serious violation” of the Code of Student Conduct.  At some point, the University apparently issued a statement, naming the student, and indicating that he was “found….responsible for a serious violation of the Code of Student Conduct” and that he was expelled from the University. Continue Reading