Citing the ongoing nationwide dialogue on law enforcement-community relations, racial justice and officer and public safety, on September 8 the U.S. Department of Education (in coordination with the Justice Department) released a Dear Colleague Letter providing guidance to colleges and universities with respect to its expectations for campus policing. In the main, the guidance encourages institutions to adopt and implement “applicable” recommendations from the Final Report of the President's Task Force on 21st Century Policing . As noted by the Department, the Task Force Report covers topics including “changing the culture of policing, embracing community policing concepts, ensuring fair and impartial policing, focusing on officer wellness and safety, implementing new technologies, and building community capital.” The Department encourages institutions to use the Task Force Report as a “template for self-assessment and organizational change,” with adjustments appropriate to context (for example, suggesting that in the campus environment, community engagement efforts should include diverse members of an institution’s campus community such as students, faculty, staff, and administrators, as well as community advocacy groups with relevant expertise). The Department’s guidance also reiterates institutions’ security-oriented obligations under the Clery Act and applicable federal civil rights statutes.
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.
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 12th 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.”
The New York State Senate passed a bill today that would amend New York’s Campus Safety Act to require institutions, effective immediately upon its enactment, to notify law enforcement of any report of a violent felony or that a student who resides in institution owned or operated student housing is missing. The proposed legislation, which was previously passed by the New York State Assembly on May 5, 2014, will now be presented to the Governor for signature. Under the proposed legislation, institutions would be required to notify law enforcement as soon as practicable, but no later than 24 hours after receiving any such report. The New York State Education Law currently requires institutions to adopt and implement plans for notifying law enforcement, but does not mandate that notification be given.
Under federal law, the Clery Act requires institutions to have a policy that encourages the reporting of all crimes to campus police and to law enforcement. The Clery Act already requires institutions to notify law enforcement when any student who lives in on-campus housing has been determined to be missing for 24 hours. Therefore, if the proposed legislation is enacted, institutions would comply with its missing student notification requirements by continued compliance with the notification procedures required under the Clery Act.
Notably, the proposed legislation’s reporting requirements “shall take into consideration applicable federal law, including, but not limited to, the federal Campus Sexual Assault Victims’ Bill of Rights under Title 20 U.S. Code Section 1092(f) which gives the victim of a sexual offense the right on whether or not to report such offense to local law enforcement agencies.” This language makes clear that if a sexual assault occurs which constitutes a violent felony under New York State law, an institution’s reporting requirements under the proposed legislation would give way to the rights of the victim under federal law to decide whether or not to report the incident.
In the same week that we acknowledged the first anniversary of Sandy Hook, and read about yet another school shooting, in Colorado, the Florida District Court of Appeals, in a 12-3 decision, has ruled that the University of North Florida does not have the right to prohibit its students from carrying encased firearms in their vehicles even while on campus property. While this decision has received a fair amount of attention, and it may be a significant ruling for other institutions within Florida, it should not have much bearing on institutional conduct in most other states.The legal issue in this case was actually fairly narrow. Florida law provides that firearms may not be possessed on school property except when securely encased in a vehicle. The rule adopted by the University of North Florida prohibited firearms, even when encased, in a vehicle while on University property. The issue was whether Florida law recognized a right in the University to effectively make an exception to that Florida law. Ultimately, the Court concluded that the University did not have that right – that the Florida Legislature had preempted the field of firearm regulation and the University had no authority to act in the manner it did. The Court reached this decision notwithstanding the fact that another Florida statute arguably provided the University with authority to more generally restrict the use of firearms on campus. Indeed, the Court acknowledged that “[i]f the issue in this case involved the right of a student to carry a firearm in the classroom or at a sporting event, our analysis would be different.” But here the Court found that in the face of an explicit statutory provision permitting firearms to be maintained in vehicles, the University simply had no authority to provide differently.This decision is the result of the unique nature of the Florida law. Florida’s state constitution expressly recognizes the right to bear arms:
The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.
In fact, Florida’s recognition of the right to bear arms is so strong, that its Legislature had previously passed the following statutory protection:
This act is intended to codify the long-standing legislative policy of the state that individual citizens have a constitutional right to keep and bear arms, that they have a constitutional right to possess and keep legally owned firearms within their motor vehicles for self-defense and other lawful purposes, and that these rights are not abrogated by virtue of a citizen becoming a customer, employee, or invitee of a business entity. It is the finding of the Legislature that a citizen's lawful possession, transportation, and secure keeping of firearms and ammunition within his or her motor vehicle is essential to the exercise of the fundamental constitutional right to keep and bear arms and the constitutional right of self-defense. The Legislature finds that protecting and preserving these rights is essential to the exercise of freedom and individual responsibility. The Legislature further finds that no citizen can or should be required to waive or abrogate his or her right to possess and securely keep firearms and ammunition locked within his or her motor vehicle by virtue of becoming a customer, employee, or invitee of any employer or business establishment within the state, unless specifically required by state or federal law.
So while this recent decision is worthy of note, it is not likely to have any impact on the scope of permissible college and university regulations outside of Florida and other states that have adopted similar legislation.