Student Affairs

Cautionary Tale for Public Institutions - Document Your Disciplinary Decisions

November 10, 2013

By Paul J. Avery

student-affairs-300x123The recent case of Boyd v. State University of New York at Cortland (2013 WL 5640959 3d Dept. 2013) demonstrates the importance of properly documenting decisions reached during student disciplinary proceedings.  This Article 78 proceeding arose out of the dismissal of the petitioner, a student at SUNY Cortland, following a disciplinary hearing where it was determined that petitioner violated the student code of conduct by harassing a student at another institution and violating Delaware law (where the harassed student attended school).  Following the disciplinary hearing, SUNY Cortland’s suspension review panel upheld the hearing panel’s decision and sanctions. The petitioner challenged the determination on the grounds that (1) SUNY Cortland failed to follow its published rules in connection with the disciplinary process, alleging that the harassed student’s failure to participate violated SUNY Cortland’s rules because the rules require the “complainant” to present his or her own case, and (2) he was denied due process because he was not provided a detailed statement of the hearing panel’s factual findings. The Court found the petitioner’s first claim unavailing.  A “complainant” under SUNY Cortland’s rules is “any person or persons who have filed disciplinary charges against a student.”  Here, the fact that the harassed student did not participate was of no consequence, the Court held, because SUNY Cortland filed the disciplinary charges against the petitioner, and thus it (not the harassed student) was the “complainant.” The petitioner was successful on his due process claim.  The Court first observed that due process in connection with a public institution’s disciplinary proceeding requires accused students to be provided with a detailed statement of the factual findings and the evidence relied upon in reaching a determination.  The Court found that the hearing panel failed in this regard, as its decision contained only a conclusory statement that the petitioner violated the code of conduct and lacked any detail regarding the petitioner’s specific conduct as it related to harassment or violating Delaware law.  The Court also found the suspension review panel’s determination deficient because it simply upheld the hearing panel’s “findings” without further discussion.  The Court remitted the matter to the hearing panel for preparation of detailed factual findings in support of its determination. This case does not identify at what stage of the disciplinary process detailed findings of fact must be documented (i.e., hearing panel stage, review panel stage, or both), but confirms that this must be done at some stage of the proceedings in order to afford due process to an accused student because this provides a meaningful opportunity for the student to challenge the disciplinary decision. This case should serve to remind public institutions of the need to properly document disciplinary decisions with detailed findings of fact, not only to afford due process, but also with a view more generally towards withstanding potential legal challenge.  Although private institutions are not required to extend these same due process protections (e.g., detailed findings of fact) to students as public institutions, this case also provides a reminder to private institutions to ensure that their disciplinary processes are carried out in compliance with published policies and procedures.

Another Roadmap to Title IX Compliance: The SUNY/OCR Resolution Agreement

November 3, 2013

By John Gaal

university-building1At the end of last week, the U. S. Department of Education announced that its Office for Civil Rights (“OCR”) had entered into a Resolution Agreement with the State University of New York (“SUNY”) dealing with Title IX compliance issues.  Significantly, the Agreement arose out of an OCR initiated investigation and was not based on the filing of any complaint against SUNY.  OCR’s Resolution Agreement and accompanying letter of findings are significant because, as with OCR’s Resolution Agreement earlier this year involving the University of Montana, they provide a roadmap as to what OCR considers to be the requirements of Title IX in the sexual harassment context. OCR’s latest pronouncements start with its basic operating premises:

  1. if a recipient of federal financial assistance knows or has reason to know about sexual harassment which creates a hostile environment, it must take immediate action to eliminate it, prevent its recurrence and address its effects;
  2. when responding to any complaint of sexual harassment, a recipient must take immediate and appropriate action to investigate or otherwise determine what occurred;
  • if that investigation reveals that discriminatory harassment occurred, the recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent recurrence;
  1. these duties exist regardless of whether a student has complained, asked the recipient to take action, or identified the harassment as a form of discrimination.

From there, these documents offer important insight into OCR’s perspective of the full scope of a recipient’s obligations under Title IX.  First, of course, the institution must have a policy expressly providing that it does not discriminate on the basis of sex in its educational programs or activities, that this prohibition extends to employment, and that  inquiries concerning the application of Title IX may be referred to the institution’s Title IX Coordinator or to OCR.  The Title IX Coordinator should be clearly identified by name or title, with contact information (phone number, address, email).  Notice of this policy must appear, at a minimum, in announcements, bulletins, catalogs and application forms used in connection with the recruitment of students and employees and should be published broadly including on the institution’s website.  Notice of the institution’s non-discrimination policy must also be provided to any unions representing the institution’s employees. Second, the institution must maintain procedures for resolving sexual harassment complaints.  These procedures can be either the same as those used for resolving other types of complaints or can be dedicated to the resolution of sexual harassment complaints, but in either event they must provide for the prompt and equitable resolution of complaints, whether brought by students, employees or third parties.  As in the University of Montana agreement, this Resolution Agreement and letter of findings set forth OCR’s view of what should be included in these policies:

  1. an appropriate definition of sexual harassment and examples of harassing conduct;
  2. clear notice of where complaints may be filed, including the name or title, phone, address and email information of those individuals;
  3. notice that students, employees and third parties may access these procedures (based on information we have received in other instances from OCR, we do not believe that OCR requires that the same procedure must apply to all three categories);
  4. designated and reasonable prompt timeframes for major steps of the grievance/complaint process;
  5. notice of the availability of interim measures to assist the complainant and the nature of those measures (such as the availability of counseling and academic assistance, steps that can be taken if the alleged perpetrator lives on campus and/or attends classes with the victim, etc.).  Pending the outcome of the investigation, a recipient must take steps to protect the complainant from further harassment, and must ensure that such interim measures will not disproportionately impact the complainant;
  6. notice of a complainant’s Title IX rights and any available resources, such as counseling services and their right to file a complaint with local law enforcement;
  7. in the event the policy provides for informal resolution procedures (such as mediation) the policy it cannot require a complainant to work the matter out directly with an alleged perpetrator, the complainant must know that he or she can end informal resolution at any time, and if the allegations include sexual assault/violence, mediation is not appropriate even on a voluntary basis (as was the case in OCR’s 2011 “Dear Colleague Letter,” OCR’s letter of findings refers to mediation as one example of informal procedures that may be available, but then provides only that mediation is not appropriate in cases of sexual assault/violence;  presumably other informal procedures may be);
  8. any hearing processes must be equally available to both parties, including the opportunity to present relevant witnesses and other evidence and if an appeal process is provided (based on the Resolution Agreement, it appears that OCR does not require an appeal procedure), it must be available to both the complainant and the respondent;
  9. written notice to the parties of the outcome of the proceedings, including any appeals (if appeals are provided for);
  10. assurances that the institution will take steps to prevent further harassment and to correct its discriminatory effects on complainant if appropriate;
  11. protections against retaliation, including ensuring that complainants know how to report any subsequent problems (and the institution should follow up with complainants to determine whether any retaliation or new incidents of harassment have occurred);
  12. assurances of confidentiality to the extent possible, but even if the complainant requests confidentiality or asks that a complaint not be pursued, an institution must nonetheless take all reasonable steps to investigate and respond consistent with that request for confidentiality or request not to pursue an investigation (although OCR has given little guidance explaining how an institution is to strike that balance appropriately);
  13. if the incident involves potential criminal conduct, the recipient must determine consistent with state and local law whether law enforcement should be notified (but it should not wait - more than temporarily - for law enforcement to carry out its responsibilities).

In addition to these provisions, OCR apparently expects an institution to maintain documentation of all proceedings (although OCR does not indicate how long).  Institutions also must provide training regarding the grievance process to any employees likely to witness or receive reports of sexual harassment and violence (e.g. faculty, campus security, university administrators, counselors, health personnel and resident advisors).  Training can be in person or on line for all staff responsible for recognizing and reporting incidents. Responsible persons are to report not only complaints brought directly to them, but also conduct they observe first-hand or learn about in some other way. The Resolution Agreement also requires SUNY to conduct an annual review of all complaints to identify patterns or systemic problems and to conduct annual climate checks. Simply because OCR required the above in its Resolution Agreement with SUNY does not mean it necessarily will require all of these items from every other institution, nor does an institution incorporating all of these items into its policies ensure that OCR will not require something more or different in a review of its policies.  Nevertheless, the above should provide a useful checklist for institutions to consider.

Enforcing Disclosure Requirements in the Admissions Process

October 31, 2013

By John Gaal

admissions-applicationMany colleges and universities require applicants to provide information on arrests and convictions as part of the application process.  A recent case, Matter of Powers v. St. John’s University School of Law, illustrates just how costly it can be for the applicant to be less than completely forthcoming. The St. John’s University School of Law, in its 2005 application form, required applicants to disclose whether they had ever been charged with, pleaded guilty to, or been found guilty of, a crime.  The application required the individual to certify that his or her answers (to any application inquiry) were “complete and accurate” and noted that the failure to provide truthful answers could result in “denial of admission, dismissal, or rescission of an awarded degree….” Long after a student was admitted to the Law School, the School learned of information that led it to conclude that the student had not been completely forthcoming in his original application for admission with respect to a criminal conviction.  Although the student had noted his conviction for possession of a controlled substance during the application process, it was only later that the School learned that he was originally charged with intent to distribute.  Upon learning of this information, the School required the student to supplement his application information with respect to the incident.  Based on this supplemental information, the School determined that the student’s original application contained “material omissions and misrepresentations” involving the actual criminal charges that had been brought against him.  Although by this time the student had successfully completed three semesters of law school, the School rescinded his admission and, in effect, denied his application for admission nunc pro tunc. Not surprisingly, the student commenced a proceeding, claiming that the School’s actions were arbitrary and capricious and should be overturned.  In a split decision, New York’s Appellate Division for the Second Department ruled in the School’s favor.  The Court determined that the School’s decision involved an appropriate exercise of discretion after a full review of the facts and circumstances and as a result it was not arbitrary and capricious.  And, given that the original charges (which the student acknowledged were true) involved distribution and possession with the intent to distribute a controlled dangerous substance, the Court found that the penalty was not disproportionate to the offense.  One Justice in dissent felt that the School, in several respects, had gone too far and would have remanded the case back to the School to reconsider.  The dissent found that the actual penalty imposed – retroactive denial of admission – was even more severe than dismissal, since it effectively wiped the student’s record clear of his three successful semesters as if the student had never gained admission to the School (without any evidence that the School correspondingly returned the student’s three semesters of tuition). While it may not be surprising that the Court recognized the School’s right to deny admission to a student who it believed had not been fully forthcoming in the application process, what stands out about this case, of course, is that the School only made that determination halfway through the student’s successful completion of its law school program.  Given the holding in the case (and the specific language of the School’s application), it is possible that had the School learned of this deception only after the student had completed his course of studies (even years later), the Court might still have recognized the School’s right to rescind his degree. The decision certainly highlights the value of requiring applicants to certify the accuracy of the information they submit.