On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program. The rescission of DACA and the benefits afforded by the program will affect individuals employed by and enrolled in colleges and universities across the country.
DACA, implemented in 2012 through an executive order by former President Barack Obama, allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action. In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S., and advance parole, which allows them to re-enter the U.S. following a trip abroad. Currently, about 800,000 individuals are participating in the DACA program. The Trump administration’s decision to phase out the DACA program will end the work authorization and advance parole of DACA beneficiaries and potentially open the doors for their deportation.
The DACA program is scheduled to end in six months, on March 5, 2018. As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new EAD or advance parole applications from DACA beneficiaries. In addition, any pending advance parole applications are going to be closed by DHS and returned to the respective DACA applicants. Individuals whose EADs expire prior to March 5, 2018 may apply for a two-year renewal, but their applications must be received by the DHS on or before October 5, 2017.
Institutions’ human resources offices may wish to identify those individuals who are employed pursuant to DACA by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file. DACA beneficiaries will have EADs with a “C33” category and will remain employment authorized until the expiration date on their EADs. The employment authorization of these individuals must be reverified by completing Section 3 of Form I-9 no later than the expiration dates on the EADs. Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed at the college or university. With respect to those DACA employees whose EADs expire prior to March 5, 2018, colleges and universities may choose to provide a gentle reminder that renewal applications for a two-year extension must be filed and received by the DHS on or before October 5, 2017.
With respect to DACA students, faculty or staff who were planning to study abroad or attend a conference or other event outside the U.S., colleges and universities may choose to advise these individuals to change their plans and remain in the U.S., even if they have advance parole that has not yet expired since USCIS retains the authority to revoke or terminate an advance parole document at any time.
As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts. On September 6, fifteen states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination. There also is the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program. We will provide you with updates regarding the status of the DACA program as they become available.
Many institutions are reporting receipt of a letter dated June 26, 2017 from the New York Office of Campus Safety with an attached Notice of Audit (“Notice”) pursuant to New York Education Law Article 129-B (N.Y. Educ. Law §§ 6439–6449). The Notice seeks data submissions relating to the provision of Article 129-B and it includes 23 separate requests for information and documentation. The response to the Notice must be postmarked no later than July 7, 2017.
This audit comes at a time when key institutional personnel, including student affairs professionals, are away from the office on vacation and some institutions are closed. In addition, the short turnaround requested (fewer than 10 calendar days over a major holiday weekend) gives very little time to gather the responsive materials, let alone review and redact them if necessary. The time period is far less than what is required to respond to a discovery demand under the New York Civil Practice Law and Rules.
We believe that it is unclear whether FERPA permits the release of personally identifiable student information to the New York Office of Campus Safety, which is an office of the New York Division of Criminal Justice Services and not an office of an education agency.
The Audit Request
The statute at § 6449 provides only for the collection of aggregate data, consistent with the statute’s emphasis on confidentiality and respect for the privacy of those involved in the process. Section 6449(3) emphasizes that, even when collecting aggregate information “the department shall not release the information, as provided for in this section, if it would compromise the confidentiality of reporting individuals or any other party….”
Eleven of the 13 requests in the Notice contain statutory references to the applicable section of Article 129-B as authority for the requested data. Two of the requests, numbers 9 and 10, contain no reference to the statute and there does not appear to be any specific section of the statute that supports the sensitive nature of the data sought in requests 9 and 10. Additionally, request number 4 seeks copies of all “no contact orders” issued by the institution, although there does not appear to be a statutory basis for such a request. Number 6(a) seeks data on all students subject to interim suspension, although that request also appears to be beyond the scope of the referenced statutory section.
Compliance Next Steps
Notwithstanding the unrealistic time frame to respond to the audit requests and credible questions about the statutory basis for specific requests, institutions must begin to prepare a response.
Request an Extension
We encourage institutions that do not anticipate that they will be able to comply with the aforementioned deadline to contact Deputy Director Stacey Hamilton by telephone to request an extension and follow up with a written request and/or confirmation.
Prepare Materials for Submission
Institutions should plan to submit easily accessible data such as policies, blank forms, website material by July 7, 2017, or the extended deadline, and include a cover letter indicating that, where applicable, additional materials will follow as soon as possible. In that cover letter, the institution may articulate the factors, if applicable, that make it difficult to respond within the narrow time frame allotted. One of those factors may be that the materials have to be carefully reviewed in order to redact confidential information in accordance with the privacy considerations emphasized in Article 129-B and other privacy laws.
We suggest that with regard to request numbers 1, 2, 3, 5, 6(b), 7, 8, 11, 12 and 13, institutions collect the documents and data developed over the past academic year (Fall 2016 to Spring 2017). Note that for request number 12 regarding campus climate assessments, institutions should exercise care when preparing a response to prevent the identification of any particular student.
Concerns with Respect to Disclosure
Request number 4 asks for information and documents regarding each request for a “no contact order” received by the institution. Institutions may decide to provide a copy of the institution’s template “no contact order” language, rather than specific orders, together with data on the number of orders issued and the number of orders that were changed. Although the New York State Office of Campus Safety appears to be seeking copies of specific “no contact orders” that include the names of the students, it is unclear that they have the right to this personally identifiable information under FERPA.
Similar consideration applies to request number 6(a). It may be acceptable in the initial response to provide aggregate data on interim suspensions and not data that could identify a specific student. In light of the statute’s emphasis on confidentiality and privacy, and the fact that the statute refers to aggregate data, the Office of Campus Safety may not have the authority to receive personally identifiable information.
A separate issue is the scope of request numbers 9 and 10, which seek an academic year’s worth of records relating to all reports of incidents covered by Article 129-B and all records involving misconduct hearings covered by Article 129-B. These requests are overly broad, are seriously inconsistent with the statute’s emphasis on confidentiality and privacy, and are not in accord with the statute’s authorization to collect aggregate data. Institutions should be consistent in the documentation provided for each case and should make sure information does not contain personally identifiable information about students while this issue remains unresolved.
In a letter to the Office of Campus Safety dated June 29, 2017, the Commission on Independent Colleges & Universities in New York (CICU) has raised the question of redacting personal information pertaining to students.
If you have questions please contact a member of our Higher Education Group.
Apparently prompted by allegations from students and advocates, New York Governor Andrew Cuomo is reportedly directing an audit, to be conducted by representatives from the New York State Department of Education, Department of Health, Office of Victim Services and State Police, of institutions’ compliance with Education Law Article 129-B, the so-called “Enough is Enough” campus sexual violence legislation. According to published reports, between now and September 1, the audit would review institutional policies and websites to determine compliance with, among other things, the statutory requirements for adoption of policies and disclosures to students. A second phase would then examine institutions’ handling of individual cases. The precise details of these reviews are as yet unknown, but the second phase has the potential to equal or exceed, in scope and depth, reviews conducted by the Office for Civil Rights of the United States Department of Education under Title IX. OCR reviews are, of course, typically prompted by individual complaints. By contrast, the Governor’s audit program, if it proceeds as reported, would apparently target all colleges and universities in New York State, essentially subjecting them to a similar process even in the absence of particular concerns or complaints. Pursuant to Education Law Section 6440(3), the Education Department had previously indicated its intent to conduct “random audits, at any time after September 1, 2016” to monitor compliance with the statutory requirements. This initiative, however, appears to be more comprehensive in terms of its coverage of institutions throughout the State, seemingly in conflict with the statutory dictate that audits be conducted “by random selection.” Needless to say, the roll-out and implementation of this initiative bear watching.
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.
On April 19, 2016, the Fourth Circuit Court of Appeals issued a decision addressing transgender and gender nonconforming students. In G.G. v. Gloucester County School Board the Fourth Court was presented with the question of whether Title IX requires that schools allow transgender students to have access to restrooms consistent with their gender identities. The Fourth Circuit’s Decision
In 2015, Virginia’s Gloucester County School Board passed a resolution endorsing a policy that provided male and female restrooms and locker rooms in its schools, but limited their use to those of the corresponding biological gender. The policy also provided that “students with gender identity issues shall be provided an alternative appropriate facility.” The School Board took this step in the face of community opposition to the fact that the high school permitted G.G., a transgendered boy, to use the boys’ restroom for seven weeks. Members of the community appeared at two different public hearings to express opposition to the practice of allowing G.G. to use the boys’ restroom and to express concerns about the privacy of other students and the potential for sexual assaults in restrooms. The American Civil Liberties Union of Virginia brought this case on behalf of G.G. seeking an injunction of the School Board’s policy arguing that the policy violated both Title IX and the Equal Protection Clause.
Title IX of the Education Amendments of 1972 states that “no person shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 20 U.S.C. § 1681(a). The U.S. Department of Education’s regulations implementing Title IX add that the practice of maintaining separate bathroom and locker room facilities on the basis of sex is not discriminatory as long as facilities are comparable. While Title IX and the regulations have been in place since 1972 and 1980, respectively, the question of how they apply to transgender individuals was not explicitly addressed until recently; in a January 7, 2015 opinion letter the Department’s Office for Civil Rights (OCR) advised that the regulations require that any school receiving federal funding treat transgender students consistent with their gender identities.
In its April 19th decision, the Fourth Circuit reversed the District Court’s dismissal of G.G.’s Title IX claim, and held that the United States Department of Education’s “interpretation of its own regulation…is entitled to…deference and is to be accorded controlling weight in this case.” The case was remanded to the District Court for further proceedings.
While the Fourth Circuit stopped short of ruling that transgender students have a Title IX right to use restroom facilities consistent with their gender identities, the Circuit’s deference to the Department of Education’s position strongly suggests that Title IX applies to transgender students.
Some interested parties, including the ACLU, interpret the Fourth Circuit’s decision as a mandate that all states in its jurisdiction fall in line with the Department of Education’s position; and it is noteworthy that the Fourth Circuit includes North Carolina, which passed a law in March 2016 limiting bathroom access in government buildings (including public schools) to the facility that corresponds to the individual’s physical birth gender. However, while this is a possible result, the implications of the Fourth Circuit decision remain to be fully realized.
Implications for Schools in New York
It is possible that other federal jurisdictions, including the Second Circuit, will follow the Fourth Circuit’s lead and defer to the Department of Education regulations. It is also possible that some courts will go a step further and on their own find that, independent of the Department’s regulations, Title IX requires that schools permit transgender individuals access to the facilities consistent with their gender identities.
In July of 2015 the New York State Education Department (NYSED) published a guidance document consistent with the U.S. Department of Education’s position. It sets forth an expectation that schools in New York ensure that the transgender and gender nonconforming members of their community are not subject to discrimination or harassment. The NYSED guidance document specifically addresses how to handle restroom and locker room access, names and pronouns, and student records.
Transgender students’ rights remain an evolving area, but the Fourth Circuit’s April 19th decision indicates that the Department of Education’s interpretation is the standard to which secondary schools and colleges and universities will be held. It is also very possible that the Department of Education Office for Civil Rights (OCR) will focus on transgender and gender nonconformity issues in schools with heightened interest.
We encourage clients to reach out to us with questions about this decision and the Department of Education’s expectations.
As expected, New York Governor Andrew M. Cuomo signed the “Enough is Enough” legislation into law on July 7, 2015. As a result, the majority of the legislation’s provisions imposing obligations on colleges and universities will become effective 90 days from that date, on October 5, 2015. Of course, institutions can, and likely will want to, make the necessary modifications to their policies, procedures and practices in advance of the effective date, so as to avoid the need to alter processes during the upcoming academic year. The provisions of the legislation requiring biennial campus climate assessments and statistical reports to the New York State Department of Education will become effective in one year, on July 7, 2016. Bond is discussing the legislation’s provisions in detail with our college and university colleagues in our ongoing statewide briefings, and will continue to do so in our Higher Education Law Report blog.
In the Spring of 2014, MIT launched a survey of all of its undergraduate and graduate students (just under 11,000), related to issues of student sexual assault. More than 3,800 undergraduate and graduate students responded, or about 35% of the institution’s total student population. (This 35% consisted of 46% of surveyed undergraduate females, 35% of undergraduate males, 37% of graduate females and 30% of graduate males.) As noted by MIT Chancellor Barnhart last week in the release of the survey results, “[b]ecause the survey was not a random sample and was voluntary, and the topic of unwanted sexual behaviors is focused, we know the results reflect a degree of self-selection. Since it is impossible to tell how this may have altered the results, it would be a mistake to use these numbers to generalize about the prevalence of unwanted sexual behavior in the lives of all MIT students.” Nonetheless, she noted, the survey “clearly tells us that, like many other colleges and universities, we face a serious problem.”
While the full results of the survey are available online, some of the many interesting survey results are noted below:
14% of undergraduate females indicated that they had experienced stalking, being followed and/or receiving repeated unwanted messages/texts/emails that made them uncomfortable (2% of undergraduate males reported similar experiences);
10% of undergraduate females reported experiencing a sexual assault and 5% reported having been raped (undergraduate male responses were 2% and 1% respectively);
72% of all respondents indicated that another MIT student was responsible for the unwanted sexual behavior (which was not limited to sexual assault or rape) they experienced. For 98% of the females, the perpetrator was a male; for male respondents the perpetrators were males in 35% of the instances and females in 67%.
40% of female and male undergraduate respondents indicated that the perpetrator was a friend;
While 63% of those experiencing an unwanted sexual experience reported it to someone (90% to a friend, 19% to family, 13% to medical personnel), only 5% reported the experience to someone in an official capacity;
Respondents who indicated that they had experienced unwanted sexual behavior were asked of any thoughts or concerns that came to mind in deciding whether to share their experiences. Of those responding:
72% did not think the incident was serious enough to officially report
55% indicated that it was not clear that harm was intended
47% did not want any action to be taken
44% felt that they were at least partly at fault or it wasn’t totally the other person’s fault (results from another portion of the survey indicated that 20% of female undergraduate respondents and 25% of male undergraduate respondents “agreed” or “strongly agreed” with the statement: “When someone is raped or sexually assaulted, it’s often because the way they said ‘no’ was unclear or there was some miscommunication.”);
53% of respondents (with the same percentage for both females and males) “agreed” or “strongly agreed” that “Rape and sexual assault can happen unintentionally, especially if alcohol is involved.”
73% of female respondents and 76% of male respondents “agreed” or “strongly agreed” that they feel confident in their ability to judge if a person is too intoxicated to consent;
With respect to bystander activity, 91% of females and 89% of males “agreed” or “strongly agreed” that their friends would watch out for them if it seemed like something bad might happen to them and that more than 9 out of 10 respondents “agreed” or “strongly agreed” that most MIT students would respect someone who did something to prevent a sexual assault. Yet 56% of respondents who knew a perpetrator did not confront that person about their behaviors or take any action, and 50% of females and 59% of males “do not usually try to distract someone who is trying to take a drunk person to do something sexual.”
As noted, the voluntary nature of the survey and its narrow focus make it hard to know why students self-selected in or out of the survey and whether it was in a way that might bias the results. Nonetheless, the University noted that while that does mean that the rates based on those who responded cannot be extrapolated to the MIT population as a whole and cannot be validly compared to results from other surveys, it does not make the results any less accurate. Nor does it make those results any less important.
In the coming 12-18 months, either as a result of the federal government’s “encouragement” that institutions undertake surveys or pending legislation that might require them (e.g., Senator McCaskill’s Campus Accountability and Safety Act we undoubtedly will see many more colleges and universities engage in similar efforts in as they attempt to better understand the dynamics on their campuses, and how they can better address this issue.
With students, faculty and other groups increasingly vocal about institutional responses to campus rape and sexual assault, President Obama has announced the creation of The White House Task Force on Protecting Students from Sexual Assault. The group will include cabinet level leaders and US Attorney General Eric Holder. Under Title IX, colleges and universities are required to respond promptly to reports of campus rape and sexual assault. An increasing number of students have filed federal claims of sex discrimination, alleging that their institution had not adequately responded in cases where they have been sexually assaulted. At the same time, many college administrators have expressed frustration with the US Education Department’s Office for Civil Rights, finding that OCR does not fully understand the realities involved in addressing sexual assault on campuses, particularly when it comes to the student disciplinary process, and that there is confusion regarding exactly what OCR expects of them. The President has charged the Task Force with developing “best practices” for preventing and responding to rape and sexual assaults; to assure compliance with existing federal laws governing colleges; and to make available to the public individual college’s compliance with these laws. The President also asked the Task Force to improve coordination among federal agencies dealing with this issue, and to increase the transparency of federal enforcement efforts. In announcing the Task Force, the President indicated that the Task Force will look for ways to work collaboratively with colleges to develop these recommendations, though the Task Force will not include any members of the higher education community. The Task Force’s recommendations are to be submitted to the President in 90 days, and a full report on implementing those recommendations is due in one year. Bond will be following closely the work of the Task Force, and will keep clients updated on developments.
Following the lead of North Carolina last year, members of the Virginia legislature have become the latest to propose legislation to provide students at public colleges and universities the right to attorney representation in on-campus disciplinary proceedings. With narrow exceptions generally arising only at public institutions (e.g., in circumstances where a student faces parallel criminal charges arising out of an incident giving rise to an on-campus proceeding), courts have almost uniformly held that students have no right to counsel during campus disciplinary proceedings. Even in those circumstances where courts have mandated the presence of an attorney, the attorney has been restricted to providing advice to protect the interests of the student, rather than being permitted to perform a formal advocacy role in which he or she presents a defense on a student’s behalf. Like the 2013 North Carolina law after which it appears to have been modeled, the proposed Virginia legislation would change this equation drastically at public institutions. With limited exceptions for charges of academic dishonesty, any student who is accused of a violation punishable by a suspension of greater than 10 days or expulsion would have the right to be represented, at the student's expense, by a licensed attorney (or nonattorney advocate). If present, the attorney would be entitled to "fully participate" during the proceedings, presumably meaning that counsel would be entitled to present opening and closing arguments, cross-examine witnesses (either directly or through the hearing body), make objections, and generally function in a manner similar to defense counsel in a criminal court. If this represents the start of a trend in higher education disciplinary law, it is a concerning one. Colleges and universities do not design their disciplinary systems to function with all of the technicalities of a criminal process, and with good reasons. Campus disciplinary proceedings are designed to be educational in nature, and a core component of the learning experience is a student's ability to speak on his or her own behalf, to take responsibility for his or her behaviors, and to learn from them. Much of this will be lost in the event that students are permitted to have attorneys speak for them throughout the disciplinary process. Reasonable minds can, of course, differ as to whether the foregone educational benefit is outweighed by the need to protect accused students in the context of potentially career-altering additions to their records; however, attorney mandates have other, more significant and less debatable, adverse implications. Ironically, proponents of these legislative efforts have characterized them as “leveling the playing field” between accused students and their institutions, but the presence of active defense counsel would almost certainly swing the balance in the opposite direction, making it both more difficult and more costly for colleges and universities to regulate conduct on their campuses. Indeed, the presence of counsel for accused students may well lead an institution to retain counsel on behalf of the disciplinary panel and/or institutional representatives presenting charges, and to allow student complainants to retain private counsel, turning the entire process into a hypertechnical, confrontational and protracted legal proceeding. The potential costs to institutions, both financial and in terms of the functioning of their disciplinary processes, are not insignificant. It may be that the courts and regulatory authorities in jurisdictions adopting attorney mandates will bring some degree of reasonableness to the analysis; for example, it is possible to argue that the right for an attorney to “fully participate during any disciplinary procedure” means that attorneys can only participate to the extent that an institution’s process otherwise allows any advocate to function in the place of an accused student, and/or that institutions may have procedures that limit the role of counsel (e.g., by precluding cross-examination) provided that the procedural limitations are applied even-handedly. However, this is far from clear, and appears to be contrary to the expectations of those who have sought to implement these reforms. Perhaps more troubling, a mandate to allow active attorney advocacy in on-campus proceedings raises the prospect of serious inequities in the disciplinary process. For example, although the Virginia legislation (like the North Carolina legislation before it) permits the use of "non-attorney advocates," affluent students who are able to retain the highest quality (and correspondingly highest-priced) counsel may have a greater chance of successfully defending disciplinary proceedings and avoiding responsibility for their actions than will students from underprivileged backgrounds. Similarly, these requirements may have chilling effects on institutions’ ability to address allegations of sexual misconduct, where institutions are required to afford complainants rights equivalent to those granted to accused students. Although this may not translate into a requirement that institutions furnish counsel to complainants in such cases (as noted above, accused students are required to pay for their own counsel), many complainants may not have the financial wherewithal or inclination to retain counsel in such circumstances, so as to enable them to have their accounts presented as effectively as those of their alleged assailants or harassers. They may also be understandably fearful of the prospect of being cross-examined by defense counsel (directly or, as is common, through the hearing body) in the manner that often proves traumatic in criminal processes. If this increases the reluctance to report sexual misconduct with which so many institutions already struggle, it will be a truly unfortunate byproduct of these legislative efforts to protect student rights. None of this is to say that accused students are not entitled to a process that is fundamentally fair when facing charges of misconduct; this has always been the law, and students sanctioned by institutions already have the right to seek judicial review of disciplinary determinations in most jurisdictions. Thus, colleges and universities are already accountable for their processes, and should of course take steps to ensure that their proceedings are conducted fairly and even-handedly. Moreover, if institutions are concerned that accused students need legal advice to protect their interests, they always have the option to design their procedures to permit (as many do) the presence of counsel to provide quiet advice to the accused. However, “lawyering up” the entire process by requiring institutions to permit full and active advocacy by counsel would seem, on the whole, to be counterproductive.
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.
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.