According to published reports, the Trump administration appears poised to direct the Department of Justice to begin investigating, and potentially litigating against, institutions over what it characterizes as “intentional race-based discrimination in college and university admissions.” This initiative, first reported by the New York Times, is purportedly reflected in an internal DoJ communication obtained by the Times seeking Department staff attorneys to volunteer to work on the investigations and/or litigation. At this point, it is not clear whether institutions will be targeted on a random basis or (perhaps more likely) based on complaints received by the Department.
This initiative, of course, comes in the aftermath of the Supreme Court’s rulings with respect to the University of Texas’s affirmative action admissions programs in the Fisher decisions. Those decisions recognized the creation of a diverse student body as a compelling educational interest, but also emphasized that an institution must not make race the defining feature of a candidate’s application for admission, and must be able to demonstrate that it has seriously considered race-neutral alternatives and that no workable race-neutral alternatives would produce the educational benefits of diversity “about as well and at tolerable administrative expense.” Although this may not require institutions to implement race-neutral alternatives and demonstrate their failure, as we have previously advised, institutions should ensure that they are able to document evaluation of such alternatives in order to defend challenges to their admissions programs. The apparent advent of the reported Department of Justice initiative may quickly render this consideration more important than ever, and the prospect of challenges more than theoretical.
On October 28, 2016 the United States Supreme Court agreed to review the Fourth Circuit’s decision in Gloucester County School Board v. G.G. This case is about whether a Virginia School Board’s policy limiting students’ bathroom access to facilities that correspond to students’ biological gender is discriminatory. The case was brought by the ACLU, on behalf of transgender student G.G., alleging the School Board’s policy violates G.G.’s rights under the Constitution’s Equal Protection Clause and Title IX of the Education Amendments of 1972, and is inconsistent with U.S. Department of Education Office for Civil Rights (OCR) guidance stating that school districts should treat students consistent with their gender identities. While the Fourth Circuit held that OCR guidance, while not law, deserved deference on this issue it stopped short of holding that the School Board’s policy violates Title IX’s protections against sex discrimination. On August 29, 2016, the School Board petitioned the Supreme Court for review. In response the Supreme Court stayed the Fourth Circuit’s decision, thus keeping the School Board’s policy in place while it considered whether it would review the case. A decision by the Supreme Court here will not just determine whether this Virginia school board’s policy violates federal civil rights laws. A decision will impact similar transgender policies, laws, and cases under scrutiny in North Carolina, Texas, and elsewhere. This case is further meaningful for the education community as it may provide clarity on the scope of Title IX’s sex discrimination protections and the appropriate weight to afford OCR interpretation of Title IX and other statutes. For more background on Gloucester County School Board v. G.G. see our previous post here.
In the closing weeks of 2014, OCR announced its findings with respect to Harvard Law School’s Title IX compliance, as well as a resolution agreement which subjects the Law School, and the University, to monitoring for at least the next three years. As just one indication of how complicated it has become to comply with the government’s view of Title IX, in July of 2014 the University, as a whole, issued a new Title IX policy and procedures, which, despite this institution’s unmatched resources and compliance efforts, OCR still noted in its Law School findings were deficient in some respects. Highlighted below are the main areas (of more general application to other institutions) in which OCR either found the institution’s policy and procedures in need of revision or otherwise required it to undertake action. While this list does not provide an exhaustive checklist, by any means, of all the items that must be in policies and procedures in order to be compliant, it does provide a useful checklist of some of the “detail” OCR expects to find in those policies and procedures. Specifically OCR required:
An explicit statement that:
the institution has an “obligation” to address incidents of sexual harassment (which includes assault) that “it knows or should know about, even when a complaint or report is not filed,” and to respond to all complaints and reports of incidents it “knows or should know about”;
complainants have a right to proceed simultaneously with a criminal investigation and a Title IX investigation and that the University may defer its investigation for only a limited time for law enforcement fact gathering and then will promptly resume its investigation;
“mediation” (which OCR seems to view as but one type of informal resolution) will not be used in sexual assault and sexual violence cases, and students who report (the broader category of) sexual harassment will not be required to resolve the problem directly with the alleged harasser;
the institution will “take steps to prevent recurrence of harassment and to correct its discriminatory effects on the complainant and others”;
written notice will be provided to both parties about the outcome of any investigation and/or disciplinary proceeding and “as permitted” the written notice will be provided to the complainant about “the sanction imposed on a student who was found to have engaged in harassment when the sanction directly relates to the harassed student”;
Clear language that the University has an “obligation to consider the effects of off-campus conduct when evaluating whether there is a hostile environment in a University program or activity”;
That the institution maintain (but it doesn’t say for how long) “records of each informal and formal complaint, including individuals involved, investigative steps taken, documentation received, individuals interviewed, decisions reached, and reason(s) for the decision(s) reached”;
Language that makes clear that in the event informal procedures are available, “a party” may end informal proceedings at any time and move to a formal process (given OCR’s general view that both parties are to be treated throughout in an equivalent fashion, one might interpret this reference to “party” to mean either complainant or respondent, but that is not clear);
The designation of reasonable prompt timeframes for each major stage of the proceedings, including a description of factors that may extend the timeframes (such as complexity of the investigation and/or severity and extent of the alleged conduct);
The email address for each designated Title IX Coordinator;
That the institution inform the parties at regular intervals of the status of the proceeding; and
An explicit prohibition of public hearings in cases involving sexual assault or violence.
The findings letter also repeats the need for Title IX policies to address complaints brought against third party, non-campus respondents, as well as the institution’s need to check with complainants to ensure interim measures are effective and, if not, to identify alternatives. In what has become standard fare, OCR is also requiring a climate survey (the contents of which has to be approved by OCR) for each of the three years covered by the monitoring period. Finally, the resolution agreement covers training, giving express approval to in person or on line training. For staff responsible for recognizing and reporting violations of the policy, and those involved in processing, investigating, resolving and or/reviewing complaints or other coordination of Title IX compliance, training at a minimum must include how to handle complaints or other reports of sexual harassment, sexual assault and sexual violence; the institution’s grievance procedures; and confidentiality requirements. For all administrators, faculty, residential staff and others who interact with students on a regular basis, training must provide attendees with essential guidance and instruction on recognizing, appropriately addressing and reporting allegations and complaints (including the difference between sex discrimination, sexual harassment, sexual assault, and sexual violence), the institution’s responsibilities under Title IX to address allegations, including the availability of interim steps, and confidentiality. New employees are to be trained within 90 days of hire. Institutions are well advised to review their policies and procedures to make sure these issues are covered.
In 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.
Under Title IX, the concept of “responsible employee” has a great deal of significance, as recently reaffirmed by OCR in its Questions and Answers on Title IX and Sexual Violence (Q&A), and previously reported in this blog. OCR deems an institution to have notice of student-on-student sexual harassment and/or misconduct if a “responsible employee” knew, or in the exercise of reasonable care should have known, that harassment/misconduct occurred. And, of course, it is that knowledge that triggers an institution’s obligation to take appropriate steps to investigate and, as appropriate, end and remedy that harassment/misconduct. Responsible employees also have the initial obligation to report incidents of sexual harassment/misconduct to the Title IX coordinator (or other appropriate designee). So who is a “responsible employee” in the eyes of OCR? While OCR’s Q&A may provide some clarification of this very significant issue, it continues to leave a number of unanswered questions for colleges and universities. At one place in its Q&A, OCR provides that a responsible employee is any employee:
(a) who has the authority to take action to redress sexual harassment/misconduct;
(b) who has been given the duty of reporting incidents of sexual harassment/misconduct or any other misconduct by students to the Title IX coordinator or other appropriate designee; or
(c) who a student reasonably believes has this authority or duty.
(The standard provided in the Q&A actually refers to “sexual violence,” not sexual harassment/misconduct, but in a note OCR makes it clear that the same standards apply to sexual violence and “other forms of sexual harassment,” which would include sexual assault. We use the broader reference to sexual harassment/misconduct for this discussion.) This first prong of this definition seems clear, and since institutions in the first instance have the ability to determine who they give the authority to take action to redress sexual harassment/misconduct, this prong seemingly provides an institution with some latitude to self-determine who is a responsible employee and therefore whose notice of an incident triggers the institution’s obligation to act. There is less clarity around the second prong of the definition. On its face, the Q&A provides that a responsible person is someone “given the duty of reporting…to the Title IX coordinator.” This reference – “reporting … to the Title IX coordinator” – is pretty precise and could be read as suggesting that someone whose duty is to report misconduct, but not to the Title IX coordinator, is not a responsible employee. Later in the Q&A, however, there is a lengthy discussion regarding RAs (Resident Assistants/Advisors). In that discussion, OCR seems to say that an individual who has a duty to report misconduct of any kind that violates school policy (e.g., drug and alcohol violations, etc.), regardless of to whom they are obligated to report it (the Title IX coordinator or someone else), is a responsible employee. The Q&A also fails to define the “employee” part of the term “responsible employee.” Is a student, who receives free room and board in exchange for “monitoring” a floor in a dormitory really an “employee” at all (for example, for Fair Labor Standards Act purposes, that student may not be considered an “employee” despite their assignments)? Leaving aside the question of whether someone is “responsible” (discussed above), OCR’s latest guidance does not tell institutions who are “employees” for this purpose. And does OCR really mean that any employee who has any “misconduct” reporting duty is a “responsible employee”? The above referenced definition provides that someone who has been given the duty of reporting incidents of sexual violence “or any other misconduct by students” is a responsible employee. Generally speaking, faculty at most institutions are likely to have an obligation to report plagiarism and cheating. Leaving aside for a minute the third prong of the definition – someone who a student could reasonably believe has the authority or duty to act – does this mean that all faculty are actually responsible employees, merely because they report cheaters? We simply do not know. Presumably, OCR intended that an employee with broad based misconduct reporting responsibilities be viewed as a responsible employee, regardless of whether they are charged with reporting directly to the Title IX coordinator or not, but just how far this definition goes remains unclear. The third prong of the definition also raises some unanswered questions. In the first instance, the third prong suggests that when someone might only “appear” to have the requisite duty or authority to act, but really does not, an institution can protect against that person being a responsible employee by clearly indicating that he or she is indeed not a responsible employee. For example, assuming faculty at a particular institution do not have any institutionally-assigned duty to report any kind of student misconduct and/or authority to redress sexual harassment/misconduct, and therefore do not fall within the first two prongs of the definition, it might nonetheless be reasonable for a student to believe that they do, thereby making them responsible employees under the third prong. If institutional policy clearly and visibly provides that faculty are not responsible employees, it would seem that a reasonable basis to believe that they are would no longer exist, the result being that a faculty member’s awareness of sexual harassment/misconduct would not necessarily constitute institutional knowledge and trigger any obligation to act. Of course, institutions must determine whether they are better off attempting to exclude faculty (or any other group) from the category of responsible employee (in an attempt to avoid potential liability in the event a faculty member fails to act), or clearly including them in that category (to ensure the strongest likelihood of rooting out harassment and misconduct). What about an individual who falls squarely within the first two prongs of the definition? Can an institution effectively remove them from the responsible employees category, simply by saying so? There certainly are parts of the Q&A that suggest that the answer is yes. For example, the Q&A advocates for institutions to designate individuals (beyond professional and pastoral counselors) on campus as “confidential” resources for victims, which would take them out of the responsible employee category (provided the institution provides clear notice of that fact). In fact, the Q&A specifically contemplates that possibility for an RA, despite other misconduct reporting obligations which would seemingly place them within the second prong of the definition. But just how much latitude might an institution have in this regard? Can it carve out of the responsible employee category all employees who otherwise have a duty to report a wide range of other types of student misconduct? Can it effectively whittle down the category of responsible employees to just one or two specifically identified persons on campus – in an effort to limit its “knowledge” of assaults and therefore its obligation to act? It is hard to believe that OCR would want an institution to have that much latitude, but there are mixed messages from the Q&A as to just what is permitted and what is not. Once it is finally determined who is a responsible employee, and that person becomes aware of sexual harassment/misconduct, the institution is responsible for ensuring that he or she reports to the Title IX coordinator (or other appropriate person) all relevant details about the alleged harassment/misconduct that have been provided. This includes the names of the alleged perpetrator (if known), the student who experienced the alleged harassment/misconduct, other students involved in the incident, as well as relevant facts such as date, time, and location. In addition, colleges and universities are required by OCR to make clear (or as clear as they can, given the ambiguities in the Q&A) to all employees and students which staff members are responsible employees, both so students can make informed decisions about in whom to confide and so employees can understand their reporting obligations. Finally, this newest OCR guidance states that an institution needs to instruct responsible employees that, when talking to a student who might reveal information which he or she may wish to keep confidential, the responsible employee must in effect “Mirandize” the student before that information is revealed. That is, the responsible employee needs to (1) warn the student of the employee’s obligation to report any information the student reveals to the Title IX coordinator, (2) explain to the student his or her option to ask that the institution nonetheless consider maintaining the confidentiality of that information, but that the institution may not be able to guarantee confidentiality (more about this in a future post), and (3) advise the student of the ability to instead share this information with counseling, advocacy, health, mental health or other sexual assault-related resources who are not obligated to report it to the Title IX coordinator. Clearly, a basic task for every institution is to make a reasoned determination concerning who it considers id a responsible employee (and who it does not) and to make that determination well known. Then, it is incumbent on the institution to make sure that responsible employees fully understand – and comply with – their obligations. No doubt the intent of OCR’s Q&A was to provide clarifying and useful guidance to institutions. Regrettably, as has often been the case with OCR guidance in this area, the Q&A leaves a number of unanswered questions.
In 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.
As reported last week, The White House Task Force To Protect Students From Sexual Assault issued its first report. Simultaneously, OCR issued Q&As on Title IX obligations and related documents to help guide institutions and to reinforce the government’s interest in pushing colleges and universities to better respond to campus sexual assaults. The effort to protect students on college and university campuses from sexual assaults is unquestionably a good thing, although one might question some of the government’s tactics.Towards the end of last week, the Department of Education turned the heat up on institutions. On May 1, DOE made public a list of 55 higher education institutions currently the subject of OCR Title IX investigations, both complaint and compliance driven. Bear in mind that these are simply situations in which a complaint has been filed, whether warranted or not, or the institution is the subject of a compliance review. While the DOE’s press release stated that an “appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law,” it seems that this latest tactic is intended as the equivalent of a “perp walk” designed to put pressure on institutions by making them look bad, although they have not been found in violation of the law in any way. Although OCR noted that the list will be updated regularly, thus sending a message well beyond the 55 institutions named, it is notable that OCR did not indicate any intention to publicize, in a similar manner, those institutions cleared of any allegations of misconduct. This current wave of action to attack sexual assault has not been limited to the federal government. Last week the Connecticut House and Senate both passed legislation dealing with campus sexual assaults. Under this legislation, both public and private colleges and universities in Connecticut will be required, among other things, to:
provide free counseling services to students who have been sexually assaulted, whether on or off campus,
provide annual prevention and awareness programs for students and employees,
provide concise written notice of a student’s right to seek disciplinary action in the event of a sexual assault and of the availability of any free healthcare and counseling related to an assault,
enter into an agreement with at least one community-based sexual assault crisis service and a domestic violence agency to provide free help to students, and
provide legislators on an annual basis with the institution’s sexual assault policies, the number and type of risk reduction programs in place, the number of incidents of sexual assault, domestic violence and stalking, the number of disciplinary cases related to sexual assaults and their outcomes.
Time will tell if other states will follow suit with their own unique brand of campus sexual assault legislative oversight.In the meantime, institutions will need to prepare for the possible negative public image impact of OCR’s decision to publicize any complaint or compliance review, regardless of outcome or merit.
Today the White House issued the “first” report from its task force on sexual assault. The Report provides a number of recommendations for colleges and universities and is a “must read” for any administrator charged with any aspect of Title IX compliance.Among the items addressed in the Report are the following:
Campus Climate Surveys. The Report begins by noting that the first step in solving a problem is to identify it. To assist institutions in identifying problems on their campuses, the Report provides a “toolkit" for conducting a Campus Climate Survey. The Report suggests that an institution that is “serious” about addressing the problem of sexual assaults will voluntarily conduct a survey. It also indicates that the government will be exploring legislative or administrative options to require schools to conduct a survey in 2016.
Engaging Men. The Report presses institutions to engage men as “allies” in the cause to combat campus sexual assaults, noting: “Most men are not perpetrators – and when we empower men to step in when someone’s in trouble, they become an important part of the solution.” Towards this end, the Report offers information on “Bystander-Focused Prevention of Sexual Violence.”
Effectively Responding. A major component of the Report is its emphasis on institutions’ need to effectively respond to complaints of sexual assault by students. The Report discusses a host of issues related to policy language and investigation and hearing procedures. (The Report is detailed in this regard and contains far more than can be covered in a single blog post. Future posts will explore specific topics in more detail.)
One of the most intriguing aspects of the Report is its encouragement for institutions to have a confidential resource with whom victims can talk and from whom they can receive advice and support that does not require the commencement of an investigation, if the victim is not ready to take that step. Until this point, the issue of confidential campus resources (meaning whether such confidential resources are permissible and, if so, who could be designated as a confidential resource) has been a subject of much speculation and confusion. According to the Report, institutions should “make it clear up front, who on campus can maintain a victim’s confidence and who can’t – so a victim can make an informed decision about where best to turn.” The Report provides institutions with sample language for a confidentiality protocol. Interestingly, this sample language indicates that institutions are permitted to have “confidential” advocates (including non-professionals) who, if contacted, would keep the Title IX Coordinator informed of the general extent and nature of the incident, but would provide no personally identifying information to the institution and would not trigger an investigation. These individuals are distinguished from “responsible employees” who have a different reporting role and whose receipt of a report will generally trigger an investigation. Issued with the Report is an extensive “Q&A" from OCR, which provides more detail as a follow up to its April 4, 2011 “Dear Colleague Letter” and also addresses this use of confidential advocates among many other issues).The Report also includes a Checklist for Campus Sexual Misconduct Policies to assist institutions in drafting and/or reevaluating their own misconduct policies.
Transparency. The Report affirms the government’s commitment to making enforcement efforts more transparent. Towards that end, it has created a new website, NotAlone.gov to “give students a roadmap for filing a complaint if they think their school has not lived up to its obligations.” It also notes that OCR is strengthening its enforcement procedures by instituting time limits on negotiating voluntary resolution agreements, making it clear that institutions should provide victims with interim relief (such as housing or schedule changes), that OCR should make itself more visible on campus during investigations, and that OCR should improve its coordinating efforts with the Department of Justice.
The above merely touches upon the highlights of the Report. Over the coming weeks, we will provide more information about the details of the Report and its accompanying documents. For now, one thing seems clear: the federal government is signaling an even greater enforcement effort with respect to sexual assault on campus. All colleges and universities should take this opportunity to review their current policies and procedures, in light of the Report and its recommendations, as the Report is clearly the government’s new roadmap.
It is often said that retaliation claims are much harder to defend than the underlying discrimination claim. This is at least in part because human nature is such that it is not a stretch to believe that someone falsely branded a discriminator will either look to retaliate against his/her accuser or will not pass up the opportunity to retaliate when circumstances present themselves. Knowing this, clever would-be plaintiffs, believing that the writing is on the proverbial wall in terms of their own performance deficiencies, often try to lay the foundation for a retaliation claim by engaging in protected activity (complaining about discrimination) prior to their employer pulling the trigger on a termination. The case law is replete with such efforts. But what happens when the would-be plaintiff’s complaints go beyond allegations they were being discriminated against? Earlier this month, Judge Leonard Wexler of the Eastern District of New York, in Saliba v. Five Towns College, 2014 WL 92690 (E.D.N.Y. 2014), held that the Plaintiff essentially complained her way out of a Title VII retaliation claim. The Plaintiff was an Assistant Professor of English at Five Towns College. She alleged she was terminated for complaining about: sexual harassment committed by another faculty member against students; illegal drug use; campus security issues; and “rampant corruption” in the administration of the College. In granting the College’s motion to dismiss the complaint, Judge Wexler held that to the extent Plaintiff’s Title VII retaliation claim was predicated on her complaints about students being harassed, as a matter of law, such complaints did not constitute “protected activity.” Title VII does not cover complaints about “non-employees,” such as students, being subjected to discrimination. Additionally, Judge Wexler held that because Plaintiff complained about so many different aspects of the College’s operations that had nothing to do with discrimination, her complaint failed as a matter of law. Citing the most recent Supreme Court decision on point, Judge Wexler held that Plaintiff was require to show that her protected activity was a “but-for” cause of her termination, not just a motivating factor. In this case, however, Plaintiffs complaints were not about an employee being the victim of discrimination, but were rather about matters completely outside the scope of the anti-discrimination laws. In light of Saliba, employers facing retaliation claims would be well-served to carefully examine the precise nature of the alleged protected activity and to scrutinize whether such activity was the “but-for” cause of the adverse employment action.
 The author of this blog represented Five Towns College in this case.
Inside Higher Ed recently reported a situation involving Western Michigan University (WMU). According to published reports, WMU placed a suicidal student on involuntary medical leave. The student appealed his dismissal and filed a complaint with the Office for Civil Rights (“OCR”). The student was readmitted, but he later committed suicide in his apartment, where he was found by his roommate. At present, a debate is raging around this situation. Some hail the fact that the student won the right to return to campus as a victory for emotionally distressed students. Others see this as an example of the tragedy that may flow from OCR’s push to require colleges and universities to allow students to remain on campus after they are no longer well enough to be there. Administrators are caught in the unenviable middle. The issue of what to do in response to suicidal students is anything but a clear one. This was not always the case. Over the course of several years, OCR had developed a fairly clear line of cases on this issue, and OCR generally supported involuntary withdrawals where students presented a direct threat to themselves or others. OCR laid out various procedural “due process” steps and considerations to be met in these situations, which boiled down to notice of the intent to remove the student, an opportunity for the student to respond, and an individualized inquiry into the facts and circumstances of each case. Most colleges and universities drafted policies incorporating those procedural steps and considerations. The present uncertainty exists as a result of a change to the regulations for Title II of the Americans with Disabilities Act (ADA). In September 2010, the Department of Justice (DOJ) revised the Title II regulations, and, in particular, with respect to when a student was a “direct threat” such that the student was not otherwise qualified to remain enrolled. The DOJ’s new direct threat definition is “a significant risk to the health or safetyof others” (emphasis added). That is, DOJ did not include an individual’s threat toselfas part of the direct threat analysis. The Title II regulations were announced in September 2010 and became effective in March 2011. Title II applies to public universities, not private universities. Private universities are covered by Title III of the ADA, but OCR seems to be moving toward using the same direct threat analysis -- one that no longer considers a student’s threat to himself/herself -- for private universities as well. OCR has not announced a formal renunciation of its earlier line of cases, and it has been assumed for some time that OCR will provide official guidance to clear up this confusion. To date, that has not happened. The unfortunate reality is that administrators are in the position of having to “pick your lawsuit”. A decision to involuntarily remove a suicidal student may result in a discrimination claim. Of course, if a student commits suicide on campus, the institution runs the risk of wrongful death or negligence claims, not only from the student’s estate but from other students traumatized or even physically injured in the event. Beyond the legal risks, there are bedeviling educational and ethical questions that go to the balance between the interests of the mentally ill student and the interests of the learning community as a whole. That elusive “right thing to do” depends on the unique circumstances of each situation. With that said, the following are universally helpful factors to bear in mind.
(1) Be certain to consider each situation on an individualized basis, taking into account the student’s behavior on campus, the opinions of campus mental health professionals, and the resources available short of an involuntary leave that may allow the student to remain safely enrolled.
(2) If a leave of absence is in order, it is always best that the student leave voluntarily -- truly voluntarily (not threatened into a voluntary leave). This is always the safer route, from a liability standpoint.
(3) If the student is to be removed involuntarily, consider whether there are facts to be cited demonstrating the student’s threat to “others” as well as to “self”. The student’s removal should be based on these larger community-type factors in addition to any expressed or anticipated harm to self.
(4) Ensure that leave policies do not treat removals for psychological reasons more harshly than removals for other reasons. If a readmission policy is more onerous for psychological leaves versus other leaves, OCR may find the policies discriminatory on this basis alone. If an institution requires “proof” that a psychological condition has been addressed before readmitting a student, it should require some kind of similar “proof” from students who required leaves for other reasons -- whether general medical reasons, finances, family commitments, and so on -- that the circumstances that necessitated these non-psychological leaves have been dealt with as well.
(5) Be sure the institution’s policies reflect its sense of the appropriate balance of the legal, educational and ethical concerns these situations present. Once that balance is decided upon, the institution must follow its policies carefully and precisely with respect to each troubled student. OCR is highly attentive to an institution’s compliance or lack thereof with its own published policies.
There will no doubt be further legal developments and continued academic debate around these very difficult situations. In the meantime, administrators should work closely with legal counsel to navigate the best path forward for their particular institution.
In the past three years, there has been considerable activity on the Title IX/Sexual Assault legal front. We have all read about the increase in claims brought by victims against their institutions through the complaint procedures of the U.S. Department of Education’s Office for Civil Rights. There have been well publicized resolution agreements reached between OCR and institutions. And there has been the April 2011 “Dear Colleague” letter issued by OCR that has been the subject of much debate. But institutions are also starting to see an increase in push back from students accused of sexual assault. A recent Bloomberg report highlights a number of legal complaints filed by male students against their institutions as a result of disciplinary action taken against them arising out of sexual assault claims. Institutions should not ignore these latest challenges. At a minimum, they should review their existing investigation and hearing procedures not only to ensure that they provide appropriate protections for those accused, but to also make sure that they provide “equal” process for both the victim and the accused. OCR has made it clear that the process needs to be the basically the same for both parties. For example, if the victim has the right to have an advisor present throughout the proceeding, the accused must be afforded that same right; if the victim has the right to appeal a hearing decision, the accused must be afforded that same right. In addition, it is critical that institutions “execute” in accordance with their own policies and procedures. While institutions have a fair degree of leeway with respect to what goes into their policies, the surest way to create a legal issue is to then not follow those policies. Do not put something in your policy that you are not prepared to live with, and once you put it in your policy you need to make sure you follow it. Whether now, at the end of the calendar year, or in the Spring, at the end of the academic year, at least annually an institution should conduct a thorough review and audit of the past year’s sexual harassment/assault cases. Determine what was done correctly and what could have been done better. Based on those experiences, consider modifications to your policies and procedures, and/or to your implementation of them, to best position your institution, and the outcomes reached in your internal proceedings, against future legal attack.
Institutions often make a “deal” with an individual faculty member that is memorialized in something less formal than a lawyer-drafted contract, and there is always that lingering question as to whether it will be “enforceable” if and when the time comes. A recent decision involving Northwestern University is good news for institutions in this regard.
Here, a faculty member had requested from the Dean a year’s leave so that he could visit at another institution. The Dean indicated that she would provide that leave, along with a second leave to take place three academic years into the future (with the faculty member teaching in the intervening years) provided the faculty member would then retire at the end of that second leave. Ultimately a “deal” was struck and the Dean followed up with a letter to the faculty member that provided “…I will accept your resignation from the …faculty effective with your retirement on August 31, 2012….” The letter went on to explain his leave and teaching responsibilities.
In 2011, the faculty member was reminded that the next year would be his last and then he would be retired. He balked, indicating that he did not want to retire and insisting that he had never agreed to retire. He filed an EEOC charge and upon receiving his right to sue letter, commenced an action in U.S. District Court in Chicago. The District Court ruled against him and he appealed to the U.S. Court of Appeals for the Seventh Circuit, which also found for the University.
First, the faculty member argued that the University discriminated against him by offering retirement packages to older employees but not younger ones. After recognizing that employers would have little reason to offer retirement/early retirement packages to new workers, the Seventh Circuit confirmed that the Age Discrimination in Employment Act (ADEA) simply “does not forbid offers that favor older workers over their younger colleagues.”
Next the faculty member argued that he construed his arrangement with the University as giving him an option to retire after the 2011-2012 year, but it was never his intent that he had to retire. The Court had no trouble describing the arrangement reflected in the letter from the Dean a “contract.” Nor did it have any trouble interpreting this agreement as committing the faculty member to retire no later than the end of the 2011-2012 year. The faculty member’s non-sensical “understanding” – that it remained his option – would have had the University giving him two years worth of paid leave in exchange for only the possibility that he might retire after the 2011-2012 year (which of course was a possibility anyway). As the Court observed: “People pay to acquire options; they do not get options (and two years’ pay) handed to them for nothing.” Thus the Court rejected the faculty member’s interpretation as unreasonable. In a welcomed explanation of judicial reasoning, the Court observed: “judges understand written agreements to mean what reasonable people understand them to mean.”
When so much happens between an institution and its faculty through less formal arrangements, often reflected in simple letters, it is good to know that Courts will recognize them and, along the way, provide a common sense interpretation.