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 safety of others” (emphasis added).  That is, DOJ did not include an individual’s threat to self as 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.

The 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.

At 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.

Many 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.