On November 16, 2018, more than a year after rescinding Obama administration era Title IX subregulatory guidance on colleges’ and universities’ obligations under Title IX, the United States Department of Education published its long-awaited proposed Title IX regulations. The proposed regulations will likely be viewed by institutions as a mixed bag. On the one hand, the regulations promise a narrower scope of enforcement and greater deference to institutional decisions. On the other hand, notwithstanding Secretary of Education Betsy DeVos’s assertions that the prior administration had inappropriately imposed highly technical and overly-stringent compliance obligations on colleges and universities, the proposed regulations would legislate significantly in this area, mandating detailed new processes, many of which are arguably beyond the Department’s discretion to require and some of which may create conflicts with the requirements of state laws such as New York Education Law Article 129-B. The following are some of the most noteworthy provisions.
In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases. As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.
New September 2017 Question & Answer Document Issued
In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.
The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:
The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations. Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility. See Question 6.
In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.
What this Means for Institutions
It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does notdisallow institutions from continuing current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.
One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases. Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward. Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.
More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue.
State Law Requirements
In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements. Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct. Perhaps the most notable potential exception is with respect to interim measures. New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.
The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.
If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.
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 August 21, 2016, in a case entitled State of Texas et al. v. United States of America et al., Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide preliminary injunction prohibiting the United States government (specifically, the Office for Civil Rights of the Department of Education (“OCR”), the Department of Justice (“DOJ”), the Department of Labor and the Equal Employment Opportunity Commission) from enforcing the terms of the May 13, 2016 Dear Colleague Letter issued by OCR and DOJ. As institutions are aware , the Dear Colleague Letter articulated OCR’s and DOJ’s interpretation of Title IX and its implementing regulations as requiring K-12 schools, colleges and universities to treat a student’s gender identity as the student’s “sex” for purposes of Title IX’s prohibition against discrimination based on sex, and described several areas where schools and institutions must provide transgender students with equal access to education programs and activities “even in circumstances in which other students, parents and community members raise objections or concerns.”
In reaching its decision, the Court found that there was a likelihood that the plaintiffs (13 states and two school districts) would prevail on their claim that the Departments’ interpretation of Title IX is contrary to the plain language of the statute and its implementing regulations, and is therefore incorrect as a matter of law. Specifically, the Court determined that the term “sex,” as understood at the time that the statute and regulations were initially adopted, was understood to refer to an individual’s biological sex, rather than the individual’s gender identity.
Perhaps more significantly, in an aspect of the decision that could impact OCR’s enforcement strategy in other areas, the Court also determined that OCR and DOJ were required to comply with the federal Administrative Procedure Act (the “APA”) prior to issuing the Dear Colleague Letter, and that their failure to do so rendered the Dear Colleague Letter invalid. By way of background, the APA requires federal agencies to publish proposed rules in the Federal Register, and to provide the public a period of time to comment on them (this is commonly referred to as the “notice and comment” process). The purpose of this requirement is to enable an agency to consider the perspectives of persons or entities that would be impacted by proposed rules before they are finalized. However, not every action an agency takes is required to go through the notice and comment process, and the APA specifically excludes from its ambit agency pronouncements that amount merely to interpretations of existing rules (rather than the imposition of new substantive requirements).
In concluding that OCR and DOJ were required (and failed) to comply with the APA prior to issuing the Dear Colleague Letter, the Court noted that OCR and DOJ have applied the guidance contained in the Dear Colleague Letter as if it were binding law in a manner different than the underlying regulation had previously been applied, and that the guidance is “compulsory in nature” in that schools must comply with the guidance or be deemed in breach of their Title IX obligations.
This decision is obviously significant insofar as it impacts the enforceability of the May 13, 2016 Dear Colleague Letter. However, colleges and universities that have voluntarily implemented measures consistent with the Dear Colleague Letter may certainly continue to do so, unless they are located in states that have adopted legislation prohibiting such action. Where the decision (or, at a minimum, the reasoning underlying the decision) may have a greater impact is in its potential effect on OCR’s subregulatory guidance with respect to institutions’ obligations to prevent and address sexual violence (e.g., OCR’s April 3, 2011 Dear Colleague Letter and its April 29, 2014 Questions and Answers on Title IX and Sexual Violence). Although the arguments for and against the validity of OCR’s substantive interpretation of Title IX are different as between these two subject areas, there are certainly parallels between OCR’s use of purported subregulatory guidance on both issues. Indeed, the District Court noted the impact of the May 13, 2016 Dear Colleague Letter on institutions, as evidenced by the government’s efforts to enforce its requirements, as a significant factor in characterizing it as legislative (and thus subject to the APA) rather than interpretive in nature, and OCR’s enforcement of its guidance on sexual violence is undeniable, with over 250 active investigations at more than 200 institutions currently pending.
It is certainly possible, and perhaps even likely, that the federal government will appeal the Court’s decision in State of Texas, and in any event OCR can be expected to assert that the Court’s rationale does not apply to its guidance on sexual violence. However, the Court’s decision will certainly be used in support of pending litigation challenging the validity of OCR’s guidance on sexual violence, and in connection with congressional efforts to overturn that guidance. Needless to say, the situation merits further watching.
On June 2, 2016, the New York State Education Department and the New York State Office of Campus Safety published a 52-page joint guidance document (“Guidance”) on New York Education Law Article 129-B (“the Law”), also often referred to as “Enough is Enough.” The Guidance is helpful in that it clarifies previously opaque points in the Law and acknowledges some of the practical problems faced by colleges and universities. The Guidance arrives in time to make adjustments before the July 1, 2016 deadline by which institutions are required to file their relevant policies and procedures with the State Education Department. Among the more interesting points in the 52-page Guidance are the following: When A Report is Received Section 6444(2) of the Law states that every institution must ensure that at the first instance of disclosure of an incident of domestic violence, dating violence, stalking, or sexual assault by a reporting individual, the recipient institutional representative presents the following information:
You have the right to make a report to university police or campus security, local law enforcement, and/or state police or choose not to report; to report the incident to your institution; to be protected by the institution from retaliation for reporting an incident; and to receive assistance and resources from your institution.
According to the Guidance, institutions may instruct employees to carry this paragraph with them for easy access, or, alternatively, allow employees to access the paragraph on a website and provide or read the information to reporting individuals. This second approach is only compliant if the institution trains those who are likely to receive a report on how to access the paragraph online. See pg. 19 of Guidance. An institution also must be neutral when explaining to students their options to notify law enforcement, request the assistance of campus authorities in notifying law enforcement, or to decline to notify law enforcement. See pg. 13 of Guidance. Institutions should review their policies to make sure that policy language discussing reporting options is absolutely neutral – i.e. does not recommend, suggest, or encourage any one option. Repetition of Report to Authorities The Guidance explains that the intent of Subdivision 7 of the Students’ Bill of Rights (the right to repeat an account to as few people as practicable) is to minimize impact so that students will not want to withdraw from the process. Subdivision 7 says “as few as practicable” not as “few as possible,” which, according the Guidance, affords institutions reasonable leeway to ask a student to repeat an account for legitimate reasons. See pgs. 14–15 of Guidance. For example, colleges may ask a student to repeat pertinent portions of an incident in a hearing or to a fact-finder. Emergency Access to Title IX Coordinator While the Law requires that reporting individuals have “emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault,” the Guidance clarifies that “emergency access” does not mean 24/7 access. See pg. 16 of Guidance. Amnesty The Law requires an assurance that students who make good faith reports of domestic violence, dating violence, stalking, or sexual assault will not be subject to disciplinary action for violations of alcohol and/or drug use policies occurring at or near the time of the reported incident. The Guidance clarifies that the mandatory amnesty provision does not, however, prevent an institution from removing students from clinical or residency programs where a drug or alcohol violation would indicate unsuitability to participate. See pg. 12 of Guidance. Explaining Standards of Proof Institutions are expected to educate students and employees who may receive a report about the differences between standards of proof in the criminal justice system (beyond a reasonable doubt) and the standard of proof used by the institution (preponderance of the evidence). The Guidance points out that SUNY has developed a document that may be helpful in explaining these differences: http://system.suny.edu/sexual-violence-prevention-workgroup/College-and-Criminal-Resource/. Charges The Law states that a student has the right to request that the institution bring disciplinary charges, but the Guidance clarifies that it is within the institution’s discretion to decide whether or not the evidence merits doing so. See pg. 25 of Guidance. Access to Case File The Law states that students have the right to review (and present) relevant evidence in the case file, or otherwise in the possession or control of the institution. The Guidance clarifies that this access requirement means reasonable, in person access at a time, place, and manner determined by the institution. Institutions are not required to provide the parties with copies of the case file. Further, this provision is not a generalized discovery requirement, in that the institution must only provide access to evidence that is “directly relevant to the specific case, as reasonably determined by the institution.” Institutions may restrict access to sensitive information in the file that is not directly relevant to the issues raised, as well as further restrict access if the institution determines that a student and/or advisor is merely engaged in a “fishing expedition.” See pg. 31 of Guidance. Response to Reports The Guidance addresses how charges may be adjudicated. It clarifies that while the Law refers to a “hearing,” institutions may opt for an investigator model in lieu of a traditional hearing format. Therefore, a college or university may rely on an investigator to gather the factual information, conduct interviews, summarize what is credible, and offer a determination as to whether the evidence supports the charges. Section 6444(5) does not require that evidence be offered during a hearing or in the presence of other parties or witnesses. See pg. 27 of Guidance. Advisors of Choice The Guidance contains helpful clarifications on the ability of institutions to place reasonable limits on the role of advisors, including (a) validation of rules restricting advisors from speaking during meetings or hearings; (b) a statement that institutions can prevent advisors from circumventing such restrictions, such as by writing questions that the advisee reads verbatim in real time; (c) authority to remove advisors who violate procedural rules without an obligation to adjourn the hearing or allow the student to replace the advisor; and (d) validation of institutional policies placing reasonable restrictions on scheduling accommodations for advisors (such as limiting requests for delays to allow for scheduling conflicts of advisors to a specified number of business days). See pgs. 28–29 of Guidance. Transcript Notations The Guidance notes that if a court vacates a college’s finding of responsibility for a violation of institutional policy, the corresponding transcript notation must be removed. The Guidance does not address, however, whether a transcript notation may be removed if the parties agree, as a condition of litigation settlement, to vacate a finding of responsibility. See pg. 37 of Guidance. Legal Resources The Law mandates that reporting individuals receive assistance from the institution “in initiating legal proceedings in family court or civil court,” but the Guidance confirms that this does not require that institutions bring actions on behalf of reporting individuals, provide attorneys, or provide actual direct support. Still, institutions should be able to direct individuals to resources. The Guidance cites another SUNY resource page on this topic: http://www.suny.edu/violence-response/. See pg. 18 of Guidance. Student Training The Guidance clarifies that that an institution need only offer onboarding training to all new students, and that there is no requirement, with the exception of student athletes and student leaders, that every student complete training in order for an institution to be in compliance with the onboarding training requirements. The Guidance does, however, prohibit, or at least strongly discourage, the use of online programs as the only component of onboarding training. Relatedly, the Guidance provides welcome flexibility as to the timing of the required training for leaders of student organizations and student athletes (who, unlike other students, must complete training). Specifically, the Guidance allows fall sport athletes to begin competition or student organization officers to begin their service prior to training, with an understanding that they will be trained within a short period thereafter. See pg. 45 of Guidance. Climate Surveys The Law’s climate survey requirement becomes effective in July 2016 and requires institutions to conduct surveys “no less than every other year.” However, the Guidance states that the first climate survey must be completed by July 2017. See pg. 39 of Guidance. Audits The Guidance notes that the State Education Department will conduct random audits, at any time after September 1, 2016, to ensure compliance with the provisions of the Law. See pg. 2 of Guidance. Therefore, institutions should revise policies as needed and review case handling protocols that are impacted by the Guidance.
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.
Governor Andrew Cuomo announced that he and State Legislative Leaders have reached an agreement regarding new sexual misconduct legislation.
It may be recalled that several months ago, the Governor’s office proposed and publicly promoted a sexual misconduct bill, many provisions of which we analyzed here. The new bill addresses several questions and concerns raised by the previous bill’s text and makes improvements in certain areas. However, the latest bill contains several major mandates that were not in the previous version.
The full text of the new bill is available here. Over the coming weeks, Bond will be discussing the bill’s provisions in detail on our Higher Education Law Report blog. This Client Alert is intended to notify you of the likely adoption of this legislation, and to highlight certain of the bill’s provisions that will require the most significant changes in institutions’ policies and practices if the bill passes in its current form (as is expected).
Every institution in New York State must use a single verbatim definition of consent, adopt a prescribed Bill of Rights, and adopt specific language providing amnesty for alcohol and drug use violations committed by Reporting Parties or Bystanders. The bill contains many other provisions concerning the information that must be shared with the community, including information that must be provided to a Reporting Party at the first instance of his/her disclosure about an incident of sexual assault, domestic violence, dating violence or stalking.
If the Respondent is a student, the bill would require that the institution issue a No Contact Order requiring the Respondent to leave any public place upon observing the Reporting Party. Presumably, the Reporting Party’s wishes could trump this requirement, but this is not entirely clear. The bill goes on to require that every institution must have a procedure to allow either party to review the need for and terms of a No Contact Order. For many institutions, this will be an entirely new process that must be created.
In circumstances where an institution provides interim measures or accommodations to a student in connection with a report of sexual assault, domestic violence, dating violence or stalking, the bill would require the institution to have a procedure to allow both the recipient of the interim measures or accommodations, as well as the other party (if directly affected by them), to review the need for and terms of the interim measures or accommodations. For many institutions, this will be an entirely new process that must be created.
Institutions would be required to provide written notice to students, in advance of "any meeting" they are required or eligible to attend in connection with the disciplinary process, describing the rule(s) and/or law(s) they are accused of violating and in what manner, as well as potential sanctions that may be applied. The bill appears to require this notice not only in advance of adjudicatory hearings, but also prior to investigative interviews.
In a judicial proceeding, the bill provides that the parties have the right to exclude their prior sexual history other than with other party. A common provision in policies is the exclusion of prior sexual history, but usually with the caveat that a party could make a showing that prior sexual history has some unique, strong relevance. The bill apparently would not allow any discretion based on the facts and issues of a particular case, and, therefore, policies allowing for the introduction of this evidence upon a special showing of relevance would be non-compliant.
The written determination following a disciplinary hearing must include not only the rationale for the decision regarding responsibility and the sanction, if any, but also "findings of fact". The requirement that "findings of fact" (and presumably all findings of fact) be reduced to writing will make the drafting of decisions onerous and potentially fraught, as any failure to include a finding may make a decision vulnerable on internal appeal or in external litigation.
The decision of an officer or panel concerning responsibility for a violation of sexual assault, domestic violence, dating violence or stalking must be subject to at least one level of appeal, and the appeal must be decided by a "panel". The bill does not state how many individuals must comprise the panel or specify its composition. For institutions with a single appeal officer, this will require a major policy restructure that may be difficult to staff, particularly at smaller institutions.
The bill mandates that institutions mark the transcripts of students who are found responsible for a "crime of violence" (including but not limited to sexual violence) within the definition of the Clery Act and either suspended or expelled. The bill specifies the precise words that must be used: "suspended after a finding of responsibility for a code of conduct violation" or "expelled after a finding of responsibility for a code of conduct violation". If a student withdraws during the pendency of allegations, this also must be noted on the transcript with the words: "withdrew with conduct charges pending".
An institution must train all new incoming first year students and all transfer students. The training must cover sexual assault, domestic violence, dating violence and stalking, as well as the institution’s policies, bystander intervention, and risk assessment, among other subjects. The bill requires that each student complete the training during the "onboarding" process. The bill goes on to state that an institution is required to ensure that every student organization leader and officer must complete the training as a condition to recognition of the organization, and that every student athlete must complete the training as a condition to participation in intercollegiate athletic competition.
Institutions will be required to report annually to the New York State Department of Education information about how complaints were handled. The information to be disclosed includes, among other items of information, the number of reports of sexual assault, domestic violence, dating violence and stalking; the number of cases processed through to a finding; the number of cases in which respondents were found responsible or not responsible; and the sanctions imposed on the respondent in each case where responsibility was found.
Institutions will be required to conduct a climate assessment no less frequently than every other year. The survey is to probe campus awareness concerning nine topics, including campus policies; how and where to make a report; the prevalence of incidents of sexual assault, domestic violence, dating violence and stalking; bystander attitudes; and experiences with reporting and institutional processes.
To be clear, the above are only some of the pending bill’s requirements, but they are the provisions most likely to require substantial change to policy and procedure, and, therefore that administrators will want to be thinking about immediately. Institutions will be required to be in compliance with virtually all of the bill’s provisions within 90 days of passage. The bill provides that compliance will be enforced through random audits conducted by the Department beginning in September 2016.
If you would like to discuss the bill and its anticipated impact on your institution, please contact a member of our Title IX Practice Team.
On April 24, the Department of Education’s Office for Civil Rights (“OCR”) issued new materials on Title IX. The materials include a Dear Colleague Letter to educational institutions, a letter to Title IX Coordinators and a Title IX resource guide. While the new documents are almost entirely a restatement of OCR’s previous pronouncements, there are a few noteworthy points. In the new materials, OCR focuses on the role of the Title IX Coordinator within an institution. Given the extent to which the materials reiterate OCR’s previous guidance and Q&A, it is unclear why OCR felt it necessary to create and release these new documents. One suspects that the attention is designed to increase the cultural authority of the Title IX Coordinator by stressing to the highest levels of institutional leadership the essential role that Coordinators play in Title IX compliance. OCR warns that many of the most egregious and harmful Title IX violations it has identified occurred when an institution failed to designate a Title IX Coordinator or failed to properly train and give an appropriate level of authority to its Coordinator. The new materials stress the following:Designation of a Title IX Coordinator Pursuant to the Title IX regulations, institutions must at all times have one or more employee(s) designated to coordinate their efforts to comply with and carry out its responsibilities under Title IX. When selecting a coordinator, OCR instructs institutions to consider the following: Independence – OCR reiterates its position that the Coordinator’s role should be independent of any other duties to avoid any potential conflicts of interest. However, in the new materials, OCR goes one step farther and recommends that the Coordinator should report directly to the president. OCR bases this recommendation on its concern that the Coordinator have both the independence and institutional authority to carry out Title IX compliance functions. Full-Time Coordinator- OCR stresses its previously stated position that employing a full time Title IX Coordinator, while not required, minimizes the risk of conflicts and provides more time to allow the Coordinator to perform all of the role’s responsibilities. OCR’s push toward a single, solely focused Title IX Coordinator evidences not only OCR’s continued laser focus on Title IX but also its lack of appreciation that Title IX is merely one of a thousand concerns for institutions and that not every institution, particularly the smaller or less well funded ones, can afford this luxury. Multiple Coordinators- OCR suggests that larger institutions may find it best practice to designate multiple Title IX Coordinators who work throughout different areas of the institution. According to OCR, institutions already implementing this practice have reported more effective training of the school community due to greater opportunities for students and staff to become familiar with the Title IX Coordinators. If an institution opts for multiple Coordinators, OCR requires that one be designated Lead Coordinator and that the areas of responsibility of each be clear to the community.Responsibilities & Authority of a Title IX Coordinator As the Title IX Coordinator’s primary responsibility is to coordinate the institution’s compliance, OCR reminds institutions that the Coordinator must receive notice of all reports and complaints raising Title IX issues. In these documents, OCR stresses that Coordinators’ responsibilities also include monitoring outcomes, identifying and addressing patterns, and assessing effects on the campus climate, and OCR mentions the campus climate survey that it recommends, but not does require, institutions to undertake. OCR also expressly states that institutions are prohibited from retaliating against Coordinators for carrying out their duties even when they point out areas of Title IX noncompliance. Interestingly, OCR states in the new Dear Colleague Letter that Title IX does not prohibit Title IX Coordinators from determining “the outcome of Title IX complaints” or “the actions the school will take in response to such complaints”. Indeed, OCR expressly states in these new materials that the Coordinator may play that role, provided that there are no conflicts of interest. It is not entirely clear what to make of these statements. OCR does not define what it means by the "outcome of Title IX complaints" or the "actions" in response to a complaint, but these terms seem to include institutional disciplinary responses. It is reassuring to know that OCR appears to endorse Coordinators taking a greater determining role in the outcome of individual complaints, but this sentiment is confusing because contradicts other of OCR’s statements. It will be recalled that OCR’s view is that a Dean of Students and a member of a disciplinary board may have a conflict of interest in serving as Title IX Coordinator. OCR has not explained why those positions may create a conflict of interest, but the source of the conflict has been assumed to be the involvement in the disciplinary decision making process. It would seem odd if OCR views as a conflict a Title IX Coordinator being part of a disciplinary board but would have no problem with the Title IX Coordinator making the disciplinary decision himself or herself. Further clarification on this point will be needed. Support for Title IX Coordinators The materials advise that institutions should make Coordinators visible to the campus community. OCR states that it views broad visibility of the Coordinator as evidence of the institution’s commitment to Title IX compliance. OCR’s regulations require that the institution must include its Title IX nondiscrimination notice in bulletins, announcements, applications, applications, catalogs and other publications, as well as ensuring that the Coordinator’s contact information is widely disseminated. In the new materials, OCR also endorses creating a general email address (such as TitleIXCoordinator@school.edu) and including only that general email address and position title in published materials. This is to address the problem created when published materials include an individual’s name, email and other contact information and the person leaves the position or the institution altogether. However, OCR is clear that, while the hardcopy publications may use only this general information, the institution’s website must be kept current to identify the Title IX Coordinator by name and with personalized contact information. OCR also suggests that institutions create a Title IX webpage linked to their main website to provide additional information on policies and procedures for filing Title IX complaints and any resources available to students or employees. In these new materials, OCR mentions social media, saying that, if an institution uses social media to communicate with the community, it should include the Title IX Coordinator’s contact information on social media as well. It is not clear how an institution would do this on many social media platforms, and the fact that OCR would suggest this is yet another indication of the time and attention OCR expects -- reasonably or unreasonably -- that institutions will pay to this one issue: Title IX.
New York’s proposed legislation contains extensive provisions dealing with victims’ rights. Specifically, Section 6442 of the legislation requires adoption of a Victim and Survivor Bill of Rights that provides for the right to:
1. Make a report to local law enforcement and/or State Police
2. Have disclosures of sexual violence treated seriously
3. Make a decision about whether or not to disclose a crime or incident and participate in the conduct of the criminal justice process free from outside pressures from college or university officials
4. Be treated with dignity and receive from officials courteous, fair and respectful health care and counseling services
5. Be free from any suggestion that the Victim/Survivor is at fault when these crimes and violations are committed or should have acted in a different manner to avoid them
6. Describe the incident to as few individuals as practicable and not be required to unnecessarily repeat a description of the incident
7. Be free from retaliation by the institution, the accused and/or their friends, family and acquaintances
8. Exercise civil rights and practice of religion without interference by the investigator, criminal justice or conduct process of the institution.
By and large, these provisions reflect best practices, and most institutions would say that their processes already include these principles. However, there is a real and consequential difference between an understanding that an approach is best practice and a statutory obligation. In several instances, we believe institutions would benefit from additional direction and guidance in order to fully understand what the bill intends to impose as a matter of legal mandate.
For example, Item 4 above could be read as creating a “right” that victims receive from their institution “health care and counseling services,” and that these services must be “courteous, fair, and respectful” to victims/survivors. However, some institutions do not provide counseling and/or health care services to any students, and the question is whether this legislation would require them to do so. We suspect not, and rather the likely intent is to ensure that if these services are provided to students generally, the service providers are sensitive to victims/survivors’ needs. Nonetheless, given the language used, clarification that the legislation is not mandating that institutions provide these services (or, in the alternative, that it is) would be useful.
Items 5 and 6 are certainly understandable as best practices, but, as statutory obligations, they may cause consternation, at least without further guidance. Is asking a victim how much he or she had to drink “suggesting” the victim is at fault (even though that information can be crucial to determining whether a victim was incapacitated)? At what point does going back to a victim with follow up questions to make sure the institution has a complete and accurate picture of events become “unnecessary” and subject the institution to a claim that this provision has been violated? Again, these concepts largely reflect best practices, but when included as part of a statutory scheme that presumably creates legal rights, and potential claims, their inclusion without more direction is likely to cause implementation problems.
With respect to Item 7, while every institution should take steps to protect against retaliation, no institution can guarantee that retaliation will not occur, especially retaliation by an accused’s friends or family who might have no direct connection to the institution and therefore are beyond the institution’s control (other than to bar these individuals from campus, but, of course, this does nothing to stop electronic or other retaliatory communication). Yet this provision could be read as literally requiring the institution to provide that the victim will be free from that retaliation.
Finally, the reference to the “practice of religion” in Item 8 could benefit from some further explanation. We suspect the intent is to ensure that one’s exercise of religious beliefs is not used to frustrate full access to the investigatory and adjudicatory processes, such as by scheduling an interview or hearing on an individual’s Sabbath.
Section 6442 also provides that an institution “shall list the following options in brief” -- presumably as something separate from the Bill of Rights but the legislation does not explicitly so state -- and make clear that these options can be pursued by a victim simultaneously:
1. Receive resources, such as counseling and medical attention
2. Confidentially or anonymously disclose a crime or violation
3. Make a report to an employee with the authority to address complaints, including the Title IX Coordinator, “a student conduct employee,” University police or campus security, or family court or civil court
4. Make a report to local law enforcement and/or state police
In Section 6443, the legislation requires that each victim/survivor be provided with the following information (presumably upon their making a report), even though it is largely a repeat of what is in the Bill of Rights:
1. The right to notify local law enforcement or the State Police
2. The right to report confidentially to institutional officials, who can assist in obtaining services for victims/survivors
3. The right to disclose confidentially to and obtain services from New York State, New York City and County services;
4. The right to report to institutional officials who can offer privacy and can assist in obtaining resources
5. The right to file a criminal complaint with University Police or campus security
6. The right to file a report of “sexual assault, domestic violence, dating violence and/or stalking” and the right to consult with the Title IX Coordinator, which reports are to be investigated in accordance with the institution’s policy and “a victim/survivor’s identity shall remain private at all times if said victim/survivor wishes to maintain confidentiality”
7. When the accused is an employee, the right to report the incident to Human Resources or the right to request that a confidential or private employee assist in reporting to Human Resources. Disciplinary proceedings are to be conducted in accordance with any collective bargaining agreement. If the accused is an employee of an affiliated entity or a vendor, institutional officials are to assist in reporting the matter to that affiliated entity or vendor and if necessary “assist in obtaining a persona non grata letter, subject to legal requirements and college policy.”
8. The right to withdraw a complaint or involvement from the institutional process at any time
Some of these items don’t directly involve the institution – such as the victim’s right to obtain services from the State of New York, the City of New York and “County services.” It is not quite clear why this is made an institutional obligation, or how an institution is even to comply with it when the services referenced are not defined. In a similar vein, Item 5 refers to the “right to file a criminal complaint … with campus security.” At many institutions, members of campus security are not actually sworn law enforcement officers, so they are not in a position to accept a criminal complaint for filing. Likely, this section of the legislation was intended to apply in situations where campus police/security have that authority, and was not intended to require campus security forces to otherwise purport to accept criminal complaints; however, clarification in this regard would be helpful.
Of more significance is Item 6 from Section 6443, which suggests that a victim has an absolute right to report and have their identity kept confidential. Item 8 likewise creates the impression that a victim has complete and total authority to cease an investigation or disciplinary process. These requirements create either an actual conflict with Title IX, which we doubt was the intent, or, at least, potential confusion for everyone. Under Title IX an institution must generally defer to a victim/survivor’s wishes regarding confidentiality, but there are some instances in which OCR allows and even expects/requires the institution to act despite the victim’s wishes (e.g., where there is a threat to the victim/survivor or the campus community), even if doing so might require disclosing the identity of the victim/survivor despite his/her wishes. Section 6445 replicates the Title IX considerations in determining whether to pursue an investigation despite a victim’s wishes, but it makes no mention of disclosure of the victim’s identity. On its face, then, this legislation could be read as prohibiting disclosure of a victim’s identity even if concerns over campus safety dictate that an institution proceed with an investigation and even if the only way to effectively do that is to identify the victim. We doubt that the legislation intends to create this conflict, but, unless this language is modified to reconcile these obligations with Title IX, institutions may find themselves wrestling with potentially inconsistent federal and state obligations.
The legislation also provides certain “protections and accommodations” for victims:
1. When the accused is a student, a “no contact Order”
2. Assistance from University Police or campus security (or other college officials) in obtaining an order of protection, or if outside of New York, an equivalent order; to receive a copy of the order and have a college or university official explain it (including the consequences of a violation) and answer questions about it; and to receive assistance from University police or campus safety to effectuate an arrest if they have arrest powers or seek local law enforcement assistance if they do not
3. If the accused is a student and presents a risk to the community, interim suspension (and other interim measures if the accused is not a student but is otherwise a community member)
4. Issuance of a persona non grata letter to non-community members who are accused
5. Reasonable and available interim measures such as accommodations that effect a change in academic, housing, employment, transportation or other applicable arrangements in order to ensure safety, prevent retaliation and avoid an ongoing hostile environment
Again, while many of these elements are already “standard issue” under Title IX, there are several that are not. Under Item 1, the legislation appears to give the person asserting a violation an absolute right to a no contact order without any showing at all other than naming an accused, which order is without duration, and which places full responsibility on the accused to leave a public place “immediately” if the victim and accused “observe” each other there. On its face, the provision allows no regard for the circumstances of the individuals involved, or even the campus. On a large campus where the two individuals rarely encounter each other, this provision might not be such a concern. But what about on a small campus where the individuals share the same major? Surely, this provision is not intended to require that upon an unsubstantiated allegation -- instantly and permanently -- the other student is barred from all of his/her classes, eating in the one dining hall or using the one library if the accuser is there, etc. Institutions currently have the ability to evaluate the facts and circumstances and craft a stay away solution that is fair and reasonable. It would be a difficult and unfortunate situation if this bill intends to erase any individualized consideration. This is a provision that requires substantial clarification in order to be practicable.
Interestingly, this portion of the legislation refers to “victims and survivors,” but doesn’t identify victims and survivors of “what.” In some places, the legislation refers to victims and survivors of sexual assault (and domestic and dating violence and stalking) and in other places to victims and survivors of the seemingly broader category of “sexual violence,” and in yet other places, like here, to neither – just victims and survivors. Again, more clarity in the final legislation will only help everyone involved.