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.

In this installment of our continuing analysis of the Governor’s “Enough is Enough” proposed sexual violence legislation, we turn to the minimum penalties for offenders that the bill would require. The bill, if passed as written, would mandate that colleges and universities include the following provision in their sexual misconduct policy: “For students found responsible for committing sexual assault, the available sanctions shall be either immediate suspension with additional requirements or expulsion.” Thus, a college and university would be required by law to suspend or expel any student found by a preponderance of the evidence to have committed “sexual assault”. Note the word “shall”: the legislation would allow absolutely no institutional discretion, no matter the facts or circumstances of the “sexual assault”. This leads to the obvious question, “What conduct is deemed a ‘sexual assault’ for purposes of this mandatory minimum penalty?” The bill does not define the term “sexual assault”, and “sexual assault” is not defined under New York’s penal code. Assuming that the bill intends to track VAWA’s definition of “sexual assault”, the following would be included: rape (which is any nonconsensual penetration), fondling (which is any nonconsensual sexual touching of private body parts), statutory rape and incest. Recall that this bill requires “affirmative consent”, meaning that all parties must have actively expressed consent to the specific sexual act on this specific occasion. Silence is not consent, and consent on prior occasions alone is not enough. Consider the following scenario. A male student and a female student have been “hooking up” on each of the past five Saturday nights. They kiss, and he starts to touch her breasts, and she removes her shirt. On the sixth Saturday, the kissing and touching occur but she does not remove her shirt. After a few minutes, he stops, and they go their separate ways. The woman brings a complaint, saying that she did not want her breasts touched on this recent Saturday night. She did not tell him during the interaction how she felt, but she also did not say that the touching was okay or actively participate (e.g., she did not remove her shirt). Assuming that it is determined that she did not affirmatively consent to the touching on that night, the college would have no choice except to – at a minimum – suspend the male student and impose undefined “additional requirements” on him. (The college would have the discretion to determine the length of the suspension, but the college would have no discretion about whether to suspend.) If there is any campus situation laden with critical nuance, it is a sexual interaction between two young adults. Administrators would likely agree that many, and perhaps even most, acts of nonconsensual sexual activity should result in suspension or expulsion. But there may be circumstances where a suspension ‘plus’ or expulsion seems too severe a penalty in view of all of the relevant circumstances of the case. The dilemma is heightened by the absence of a definition of sexual assault in the legislation, as it is not clear whether the bill intends to cover any nonconsensual sexual contact. If so, a single kiss without affirmative consent may constitute a sexual assault that requires a suspension. Perhaps there is leeway in how an institution defines sexual assault for the purpose of imposing a mandatory minimum penalty, but that is not clear from the statute. The possibility of this result may have an ironic unintended consequence. The mandatory minimum penalty no doubt stems from the perception that institutions have been too lenient on offenders. However, in a close case, an investigator or disciplinary decision making body, realizing that a finding of responsibility will trigger an automatic penalty of at least suspension and feeling that such penalty is unwarranted under the circumstances, may decline to find responsibility at all. The proposed legislation’s goal of ensuring that serious offenses are punished seriously is laudable. However, the legislation’s use of a blunt instrument approach to sanctioning risks overshooting the mark and deprives institutions of the ability to consider the unique circumstances of specific cases. Despite the good intentions behind the legislation, the mandatory minimum penalty provision is language that we believe could benefit from modification, or at least clarification and definition, to better serve its purpose.

To avoid, or at least minimize, environmental cleanup costs that can be imposed under state and federal superfund laws, a college or university should conduct “All Appropriate Inquiries” (AAI) before buying, leasing and accepting as a donation real estate. Conducting AAI means to undertake a Phase I Environmental Site Assessment (ESA), and until recently, that meant using the ASTM International Standard E1527-05. On December 30, 2013, the EPA amended its AAI rule and concluded that the new ASTM International Standard E1527-13 may also be used. Some of the changes in the new standard are fundamental such as the updating of the definitions of certain key terms, the addition of a new term “Controlled Recognized Environmental Condition” and a need to assess soil vapor migration. Since its initial approval of ASTM E1527-13, EPA has gone one step further. In its October 6, 2014 AAI regulatory amendment, the Agency eliminated the option to use ASTM E1527-05 as of October 6, 2015. On March 5, the first of a two-part webinar series was held and provided an overview of the environmental remediation liability programs and walked through the performance of a Phase I Environmental Site Assessment (ESA) using the updated ASTM method. If you missed this webinar, we invite you to view it by clicking here. Please join us on Thursday March 19 for Part II of the webinar presentation on AAI and the new ASTM standard. Part II will provide practice pointers in the context of the ESA process and address the following topics:

• Hiring the Environmental Professional • Confidentiality and Scope of Required Notification to Governmental Authorities • Use of Prior Phase I ESAs • Third Party Reliance on a Phase I ESA • User Obligations – § 312.22 • Environmental Liens • Agency File Reviews • Non-Scope Items • ASTM E2247-08: Phase I ESA for Forestland or Rural Property

This ASTM Phase I ESA update webinar is recommended for anyone who has responsibility for environmental matters on campus, including legal counsel, facility managers, risk management/insurance and environmental health and safety professionals. Register for this webinar by clicking here.

As we noted in our last post, we will be taking a closer look at the specific provisions of New York’s proposed sexual violence legislation over the next week or so.  With the Governor’s Office urging New York colleges and universities to endorse this legislation, it is particularly important that institutions understand its provisions. Before turning to the first provision we will examine – “affirmative consent” – a few general comments.  The first is whether this legislation is really needed.  While everyone can agree on the importance of dealing with sexual assaults on college campuses, the federal government has done so, and continues to do so, in a comprehensive way.  As the law and guidance have evolved, few could argue that Title IX does not comprehensively address sexual assault on campus.  Another layer of government regulation in this area is not necessarily helpful. This seems particularly so here, where much of the legislation mirrors already existing federal requirements.  And, in those circumstances where it does not directly track the corresponding federal statutes, regulations and guidance, it creates the potential for confusion and ambiguity.  In some instances, the legislation may even be subject to arguments, by students and other concerned parties, that it conflicts with federal law, including specifically the federal government’s announced requirements under Title IX (although it is assumed that this is not its intent).  While the legislation may provide political mileage and reinforce the attention that needs to be devoted to this important issue, it remains to be seen how substantively helpful it will be. Today, we want to focus on the legislation’s “definition of affirmative consent to sexual activity,” found in Section 6440.  (The very fact that legislation is proposed requiring all institutions to adopt uniform definitions for campus misconduct policies is itself seemingly unprecedented.) While the publicity surrounding the legislation suggests that it requires institutions to adopt a definition of consent that is “novel,” that is simply not the case.  The legislation’s basic definition of consent is:

Affirmative consent is a clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in sexual activity.  Consent is active, not passive.  Silence of lack of resistance cannot be interpreted as consent.  Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.  Consent to any sexual act or prior consensual sexual activity between or with any party does not constitute consent to any other sexual act.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identify or gender expression.  Consent may be initially given but withdrawn at any time.  When consent is withdrawn or cannot be given, sexual activity must stop.  Consent cannot be given when a person is incapacitated.

This requirement of an “affirmative” expression of consent is already typical in most college and university policies.  Not explicit in the legislation’s language is that affirmative consent can be evidenced by conduct, i.e., active participation in the sexual activity, which is typically addressed expressly in existing institutional policies.  While the legislation requires institutions to adopt this specific language, hopefully institutions may supplement this language by continuing to recognize that the required “agreement” can be evidenced by active (and voluntary) participation in the conduct in issue, thus providing more clarity to this standard. Where the definition raises some potentially significant questions is in its subsequent explanation of incapacitation.  The definition of consent in the legislation continues by providing:

Incapacitation occurs when an individual lacks the ability to fully and knowingly choose to participate in sexual activity.  Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.  Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. (Emphasis added.)

If there is one area where colleges and universities would welcome additional guidance, it is in the often vexing task of distinguishing between “intoxicated sex” and sex that occurs while a participant is incapacitated, and therefore cannot provide consent.    In a number of contexts, including in the criminal justice context as well as in sexual assaults on campus, incapacitation and intoxication have been understood to reference two very different concepts, although distinguishing between the two is often not easy at all.  To help students understand the difference, many college and university policies in defining incapacitation expressly talk about it in terms of the ability to understand the “who, what, when, where” of the sexual contact. Rather than provide much needed clarification and guidance, the definition in the legislation as currently written may create more confusion.  If the legislation actually mandates use of the above language (and, only the exact above language) to define consent and incapacitation, that language contains no practical measuring stick by which incapacitation is to be determined.  This is a missed opportunity to assist both administrators who grapple with this already difficult issue, as well as the rest of the campus community seeking to understand the institution’s (or, here, the Legislature’s) expectations. Further, the language raises potential questions as to whether a different -- lower -- standard is to apply. Under the proposed legislation, the definition of incapacitation is tied to an individual’s lack of ability to “fully” choose to participate.  That reference may be subject to an interpretation that mere intoxication (or even something less) might be enough to render someone incapacitated, but if the definition ended there that might not necessarily be the case. But the definition continues by providing:  “Incapacitation includes impairment due to drugs or alcohol,” with no further definition of “impairment.”  This begs the question whether anyone who is “impaired” is incapable of giving consent. To put this issue in some context, driving while ability is “impaired by alcohol” (which is very similar language) in New York is the lowest level offense and occurs when someone has a blood alcohol content of more than .05 but less than .07.  Under BAC estimators, a level in excess of .05 could be triggered by a 120 pound female drinking as little as two glasses of red wine over a 90 minute period.  If that is the intended standard, incapacitation will exist (and nonconsensual sexual contact will occur) in far more circumstances than anyone now considers to be the case and would make almost any alcohol consumption enough to legally prevent what is otherwise consensual sexual activity. We do not believe that the intent of this legislation is to reduce incapacitation to this level of mere “impairment”; presumably, the intent is to provide that an individual is unable to consent to sexual activity if the individual is impaired to the point of being incapacitated.  However, without further clarification or guidance, it leaves the issue subject to debate.  If the Legislature really wants to provide meaningful assistance to students and institutions, it will look at providing more clarity about the issue of “incapacitation.” In coming posts, we will explore additional aspects of the proposed legislation in relation to the current standards in this area.

As many of you know, on Wednesday, February 25, New York’s Governor Cuomo announced his support for new legislation in New York related to sexual misconduct on college campuses. There are a number of aspects of this proposed legislation which raise interesting questions, both about how it would work generally and its compatibility with Title IX and OCR’s enforcement of that federal mandate.  Over the course of the next week, we will be posting on specific provisions of this proposed legislation and what it may mean. Of some note, in explaining his belief that this legislation is needed, the Governor suggested that colleges and universities are currently incentivized to keep claims of sexual assault as “internal” matters and avoid their reporting to law enforcement authorities.  The Governor has been quoted as saying:

“The incentive, especially for private schools, is to handle the matter internally,” he said. “Why? Because the university doesn’t want the publicity in the newspaper of a rape. It’s not positive for the reputation of the school. So all the incentives are to handle it internally as an academic matter, as a campus matter, and the campus security will investigate, the school will convene a panel of professors.”

Frankly, this assertion is contrary to our extensive experiences with many private colleges and universities – who are quite genuinely concerned not with public relations impacts but with trying to handle matters for which they are not particularly well suited in a way that is fair to all involved.  It also seems to ignore OCR’s view, and the terms of legislation recently signed by Governor Cuomo himself, that the victim, not the institution, should determine whether incidents are reported to law enforcement officials. In any event, stay tuned next week as we go through the specific provisions of this proposed legislation and offer our thoughts.

At the end of 2014, the FBI issued its Study of Active Shooter Incidents in the United States between 2000-2013 (“Study”).  This first of its kind study found 160 active shooter incidents in the United States during this time period. An active shooter incident, for purposes of the study, is defined as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” There were 1,043 casualties (killed and wounded, but not counting the shooters) in these 160 incidents. The Study broke down the location of these events into 11 categories, including schools (pre-k through 12) and institutions of higher education. 24.4% of these incidents occurred in an educational setting, with 16.9% (27 incidents) occurring in a pre-k to 12^th grade settling (the second highest of all 11 categories) and 7.5% (12 incidents) occurring at an institution of higher education (the fifth highest of the 11 categories). In the 12 incidents at higher education institutions:

• 60 deaths resulted and 60 individuals were wounded;
• ages of involved shooters ranged from 18 to 62, with the shooters consisting of 5 former students, 4 current students, 2 employees, and 1 patient visiting a medical center;
• 2 of the shooters were female and 10 were male;
• 5 of the 12 incidents occurred on a Friday, with 2 each on Thursdays and Mondays; and
• 4 of the shooters committed suicide at the scene, while 2 were killed by police at the scene.

The institutions involved covered the gamut, including Appalachian School of Law, Case Western Reserve University, Virginia Tech, Louisiana Technical College, Northern Illinois University, Hampton University, University of Alabama, The Ohio State University, University of Pittsburgh Medical Center, Oikos University, New River Community College and Santa Monica College. Unfortunately, these statistics highlight the importance of institutions taking steps to address this threat, including:

• developing and testing, as required by the Clery Act’s emergency notification provisions, an effective communication system so that students and staff can be alerted to an active situation;
• developing and communicating protocols, in compliance with the Clery Act and in accordance with emergency management best practices, to be followed in the event of an incident, including protocols developed in conjunction with local law enforcement for a coordinated response;
• training appropriate personnel on identification of risk factors and appropriate responses, and developing an appropriate threat assessment process to identify and evaluate persons of potential risk within the institutional community.

Governor Cuomo has signed into law amendments to New York’s Campus Safety Act requiring institutions to notify law enforcement within 24 hours after receipt of a report of a violent felony or a report that a student residing in institutional housing is missing. Under prior law, such reporting was not required. Instead, institutions were obligated only to adopt and implement plans providing for the investigation of such incidents. As noted in a prior post, the legislation provides that institutions’ reporting obligations are subject to the rights of sexual assault victims under federal law to decide whether or not to report such incidents to law enforcement. Governor Cuomo’s approval memorandum issued in connection with the bill reiterates that the law will not alter victims’ rights under federal law, and further indicates that he signed the bill based on the legislature’s agreement to pass further legislation “making clear that sexual assault victims will retain the right to choose whether to report a crime to law enforcement.”

Last week, an anonymous Stanford University publication called The Fountain Hopper gained the attention of not only Stanford students, but admissions officers nationwide, when it disseminated a communication encouraging students to demand access to their purportedly confidential admissions files pursuant to the federal Family Educational Rights and Privacy Act (FERPA).  Published accounts indicate that as many as 700 Stanford students have submitted such inspection requests, and other institutions are beginning to receive them as well.   Though institutions have always been aware that FERPA provides students a right of inspection, this is the latest example of a circumstance in which the statute may require disclosure of information that institutional personnel have assumed to be confidential.  FERPA affords students the right to inspect and review their "education records."  The term "education records” is very broad, and, subject to certain exceptions, includes information recorded in any form that is directly related to an identifiable student. Of particular relevance to the Fountain Hopper initiative, there is no blanket exemption for admissions records and, accordingly, a student will have the right to inspect and review them unless a particular exception applies.  There are at least two specific exceptions that could, potentially, narrow the scope of admissions records that must be made available in response to an inspection demand.    First, although considered "education records," letters of recommendation are not available for inspection if the student has prospectively waived, in writing, his or her right to review them (as, for example, may occur in the Common Application). Second, the term "education records" does not include personal notes of an institutional employee, provided that the notes are made and kept by the employee solely for use as a personal memory aid, and are not accessible or revealed to anyone else, other than a temporary substitute for the employee.   Of course, this exception likely will not apply to most evaluative notes typically made by admissions officers, because those notes are placed in applicant files and available to other admissions personnel.  However, if individual admissions officers keep separate personal notes and do not reveal them further, those notes would not be subject to review.  A few related considerations: 

?          FERPA is not a records retention statute.  As a result, institutions are free to promulgate their own retention and destruction policies for admissions files, and FERPA does not prohibit an institution from destroying the admissions file of an admitted student at the time of enrollment (or a specified time thereafter), provided that the student has not previously demanded inspection of the file. (FERPA’s implementing regulations explicitly provide  that an institution “shall not destroy any education records if there is an outstanding request to inspect and review the records.”) Of course, any retention/destruction policy must consider all of the relative benefits and risks of retaining or destroying the records to which they pertain. 

?          FERPA’s inspection right applies only to students who are, or have been, in attendance at an institution.  Among other things, this means that students who were denied admission to an institution, or who were offered admission but never attended the institution, need not be provided the opportunity to inspect that institution’s admissions file on them. 

?          Finally, the inspection right granted by FERPA is just that – a right to “inspect.”  Unless an institution has otherwise committed to doing so (e.g., by way of institutional policy), it is not required to provide copies of records to a student unless the failure to do so would effectively preclude the student’s ability to review the records (for example, because the student is geographically remote).  Even then, an institution may satisfy its obligation by making alternate arrangements for inspection and review (for example, by finding a location proximate to the student’s place of residence at which records will be made available).

In states such as New York, where local governments and public schools are funded by taxes on real property, exemptions are often highly scrutinized by assessors and taxpayers alike.  However, the exemption provided to nonprofit corporations serving the public welfare, such as colleges and universities, hospitals and churches, always appeared inviolate.  The logic is really quite simple - imposing real property taxes on a nonprofit corporation (particularly one with large land holdings such as a university) would increase its costs and diminish the level of services it could provide, thereby harming the public welfare.  However, in Maine, the Governor is proposing a budget that would allow communities to tax certain larger not-for-profits with valuations greater than $500,000, such as colleges, universities and hospitals.  Specifically, the proposal would permit communities to tax nonprofit organizations at 50 percent of the property tax rate for assessed value above $500,000.  If passed, the proposal would have broad effects.   First, communities would be required to determine the actual fair market value of the real property owned by these nonprofit institutions.  Since these properties have always been exempt, assessors did not always analyze the numbers.  This process alone would likely lead to significant litigation separate and apart from any litigation challenging the legality of the proposal itself.  Second, the proposal could damage relationships between these institutions and their host communities.  For example, many colleges and universities make volunteer "host community" payments to the municipalities in which they are located, and changes such as this would certainly end those.  Finally, the proposal would impact the level of services provided by the nonprofits - to what extent remains unknown, but there would be an impact. No doubt that those states who rely on property taxes, such as New York, and nonprofits everywhere, will be watching this play out in Maine.  Only time will tell the breadth of the fallout.

In the closing weeks of 2014, OCR announced its findings with respect to Harvard Law School’s Title IX compliance, as well as a resolution agreement which subjects the Law School, and the University, to monitoring for at least the next three years.  As just one indication of how complicated it has become to comply with the government’s view of Title IX, in July of 2014 the University, as a whole, issued a new Title IX policy and procedures, which, despite this institution’s unmatched resources and compliance efforts, OCR still noted in its Law School findings were deficient in some respects. Highlighted below are the main areas (of more general application to other institutions) in which OCR either found the institution’s policy and procedures in need of revision or otherwise required it to undertake action.  While this list does not provide an exhaustive checklist, by any means, of all the items that must be in policies and procedures in order to be compliant, it does provide a useful checklist of some of the “detail” OCR expects to find in those policies and procedures.  Specifically OCR required:

• An explicit statement that:
  •  the institution has an “obligation” to address incidents of sexual harassment (which includes assault) that “it knows or should know about, even when a complaint or report is not filed,” and to respond to all complaints and reports of incidents it “knows or should know about”;
  • complainants have a right to proceed simultaneously with a criminal investigation and a Title IX investigation and that the University may defer its investigation for only a limited time for law enforcement fact gathering and then will promptly resume its investigation;
  • “mediation” (which OCR seems to view as but one type of informal resolution) will not be used in sexual assault and sexual violence cases, and students who report (the broader category of) sexual harassment will not be required to resolve the problem directly with the alleged harasser;
  • the institution will “take steps to prevent recurrence of harassment and to correct its discriminatory effects on the complainant and others”;
  • written notice will be provided to both parties about the outcome of any investigation and/or disciplinary proceeding and “as permitted” the written notice will be provided to the complainant about “the sanction imposed on a student who was found to have engaged in harassment when the sanction directly relates to the harassed student”;
• Clear language that the University has an “obligation to consider the effects of off-campus conduct when evaluating whether there is a hostile environment in a University program or activity”;
• That the institution maintain (but it doesn’t say for how long) “records of each informal and formal complaint, including individuals involved, investigative steps taken, documentation received, individuals interviewed, decisions reached, and reason(s) for the decision(s) reached”;
• Language that makes clear that in the event informal procedures are available, “a party” may end informal proceedings at any time and move to a formal process (given OCR’s general view that both parties are to be treated throughout in an equivalent fashion, one might interpret this reference to “party” to mean either complainant or respondent, but that is not clear);
• The designation of reasonable prompt timeframes for each major stage of the proceedings, including a description of factors that may extend the timeframes (such as complexity of the investigation and/or severity and extent of the alleged conduct);
• The email address for each designated Title IX Coordinator;
• That the institution inform the parties at regular intervals of the status of the proceeding; and
• An explicit prohibition of public hearings in cases involving sexual assault or violence.

The findings letter also repeats the need for Title IX policies to address complaints brought against third party, non-campus respondents, as well as the institution’s need to check with complainants to ensure interim measures are effective and, if not, to identify alternatives. In what has become standard fare, OCR is also requiring a climate survey (the contents of which has to be approved by OCR) for each of the three years covered by the monitoring period. Finally, the resolution agreement covers training, giving express approval to in person or on line training.  For staff responsible for recognizing and reporting violations of the policy, and those involved in processing, investigating, resolving and or/reviewing complaints or other coordination of Title IX compliance, training at a minimum must include how to handle complaints or other reports of sexual harassment, sexual assault and sexual violence; the institution’s grievance procedures; and confidentiality requirements.  For all administrators, faculty, residential staff and others who interact with students on a regular basis, training must provide attendees with essential guidance and instruction on recognizing, appropriately addressing and reporting allegations and complaints (including the difference between sex discrimination, sexual harassment, sexual assault, and sexual violence), the institution’s responsibilities under Title IX to address allegations, including the availability of interim steps, and confidentiality.  New employees are to be trained within 90 days of hire. Institutions are well advised to review their policies and procedures to make sure these issues are covered.

In the latest example of dramatic changes to well-developed principles of federal labor law and policy, the National Labor Relations Board (“NLRB” or “Board”) issued its long awaited decision in Pacific Lutheran University, 361 NLRB No. 157, last week. Pacific Lutheran presented the Board with the opportunity to address, and redefine, two critical areas of interest to institutions of higher education: (1) when are faculty “managerial” and thus not “employees” covered by the National Labor Relations Act (“Act”) so that, among other things, they are not entitled to organize for purposes of collective bargaining; and (2) when are the faculty at a religiously affiliated institution beyond the jurisdiction of the NLRB because of the institution's religious character. Managerial Status and Yeshiva - A New Framework The most impactful aspect of the Pacific Lutheran decision (because it affects all private institutions and not just those that are religiously affiliated) relates to the managerial status of faculty members.  In NLRB v. Yeshiva University, 444 U.S. 672 (1980), the Supreme Court ruled that faculty members who participate in the governance of the institution in a meaningful way are “managerial” and not covered “employees” under the Act.  (Regardless of industry, “managerial” individuals are not “employees” for this purpose.)  Among other things, this means that, if managerial, faculty are not entitled to compel recognition for collective bargaining purposes through the NLRB’s representation procedures.  The Supreme Court left for future case by case analysis whether the faculty at any particular institution are managerial.  Over the years, the Board has most often found that faculty are managerial under Yeshiva standard.  In a few cases, it has found otherwise, but those determinations have often been rejected by the Circuit Courts because the Board failed to provide a rationale that was consistent with its long history of treating faculty as managerial. Taking the opportunity presented by Pacific Lutheran, the Board has created a new analytical framework for determining the managerial status of faculty.  Under this new approach, managerial status will be determined by looking at whether faculty actually exercise control or make effective recommendations in three “primary” and two “secondary” areas.  The primary areas are academic programs (e.g., curricular, research, major/minor, certificate offerings), enrollment management (e.g., size, scope and make-up of the institution’s student body) and finances (e.g., the power to control or recommend on issues of income and expenses, such as net tuition).  The secondary areas are academic policy (e.g. teaching/research methods, grading policy, academic integrity policy, syllabus policy, research policy, course content policy) and personnel policy and decisions (e.g., hiring, promotion, tenure, leave and dismissal). The Board’s new analytical framework raises a number of issues.  The first is the primary/secondary dichotomy and the lower level of importance it gives to academic policy and personnel matters.  In terms of the basic issue presented in Yeshiva – who controls “the product to be produced, the terms upon which it will be offered, and the customers who will be served” ? the identified academic policy areas (teaching methods, grading policy, course content policy, etc.), seemingly have a significant impact on all three of those key factors so it is hard to understand the “secondary” characterization.  Similarly, personnel decisions (especially faculty hiring and tenure), go to the very heart of an institution’s quality and reputation, and seem to have more than just an “indirect” impact on the “product to be produced, the terms in which it is offered, and the customers sought.” Second, the Board offers no guidance on the interplay of these factors in making a determination.  For example, do faculty have to control/effectively recommend in all three primary areas (academic programs, enrollment management and finances) or will doing so in any one area carry the day?  In any other (industrial or commercial) setting, it is clear that individuals may be “managerial” even if they do not have, for example, financial control, so would/should a higher standard apply to colleges and universities?  How do primary areas interplay with secondary areas?  Will control/effective recommendation in one primary area and one secondary area be enough?  What about in two primary areas and no secondary area? No primary areas and two secondary areas?  At this point in time, we simply do not know. The Board’s new analytical framework also seemingly raises the bar on the “control or effectively recommend” side of the equation in two ways.  First, Pacific Lutheran “requires” that in order to effectively recommend, the faculty’s recommendation “must almost always” – whatever that means – be followed.  While past cases have certainly indicated that if recommendations are “almost always” followed the faculty are likely managerial, and if they are “almost never” followed the faculty are likely not managerial, the establishment of those two outer parameters did not necessarily mean that “almost always” was the recognized floor in this analysis.  Apparently it is now.  Second, the Board stated that faculty recommendations are “effective” if they routinely become operative “without independent review by the administration.”  What is enough “independent review” to take a matter outside the ambit of “effectively recommend”?  In most institutions, tenure and promotion recommendations of faculty committees “almost always” carry the day, but often there is a substantive review of the file by the Provost or President along the way.  Does the mere fact of that review mean faculty do not effectively recommend tenure and promotion, even when that administrator would reach a different conclusion if left alone to decide, but nonetheless defers to the faculty view because he or she does not act alone?  Even aside from what constitutes “independent review by the administration,” the Board’s new requirement appears to impose a higher standard in the higher education arena than in the industrial setting.  Is there any doubt that individuals in other settings retain managerial status even though their recommendations are subject to some higher level of independent review? Because we do not know, for sure, how the Board will apply this new framework, it perhaps remain to be seen how significant a change this case presents.  However, given the Board’s recent history, there should be little doubt that this new standard will lead to a dramatic change in how the Board handles faculty representation petitions, at least until a Circuit Court can determine whether this new framework is in fact consistent with the Supreme Court’s original Yeshiva decision. Religious Institutions - A New Standard In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) the Supreme Court rejected the Board’s attempt to exert jurisdiction over lay teachers at religiously affiliated schools due to concerns that Board jurisdiction could interfere with religious rights, in violation of constitutional principles.  Not content with that constitutionally-based limitation on its jurisdiction, the Board has continuously advanced interpretations of its jurisdictional reach over faculty at religiously affiliated institutions despite often being met with judicial disapproval, most notably by the U.S. Court of Appeals for the District of Columbia Circuit.  Pacific Lutheran involved an organizing attempt by adjuncts at this religiously affiliated institution and the NLRB seized upon it as an opportunity to once again try to circumvent the principles established in Catholic Bishop. The core issue that arises when the NLRB attempts to exercise jurisdiction over religiously affiliated institutions is whether in doing so it is impermissibly entangling itself in matters of religion, which then runs afoul of the Religion Clauses of the First Amendment of the U.S. Constitution.  In its prior attempts to push back at Catholic Bishop, the Board has been criticized by the Circuit Courts for invoking a standard that would involve the Board in determining whether a religiously affiliated institution is “sufficiently religious” that its faculty fall outside its jurisdiction.  Needless to say, the Board attempting to determine whether any specific institution is “sufficiently religious” seems to be exactly the type of entanglement prohibited by the Constitution. In order to avoid impermissible entanglement, the D.C. Circuit in Great Falls v. NLRB, 278 F. 3d 1335 (2002), established a three part test which allows the Board to assert jurisdiction unless an institution: (1) holds itself out to students, faculty and the community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with, or owned, operated, or controlled (directly or indirectly) by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. In its latest effort to extend its jurisdiction beyond these limits, the Board in Pacific Lutheran has now established its own two part standard: (1) does the institution hold itself out as providing a religious educational environment (this is consistent with Great Falls) and (2) does it hold its petitioned-for-faculty out as “performing a specific role in creating or maintaining the school’s religious educational environment”?  Only if both prongs are met will the Board consider an institution's faculty exempt from coverage.  To justify this latest test, the Board majority relies on the fact that, under this second prong, (1) it will no longer look at the character of the institution as a whole but at only the function of those faculty members who are the subject of the representation petition and (2) it will not look beyond the institution’s public pronouncements on the role of those faculty members in determining whether this standard is met. As the dissent points out, however, this rationale is misplaced.  First, the Board majority attempts to justify this approach as an appropriate “balancing” of the competing interests reflected in the First Amendment and the purposes underlying the Act.  Dissenting Member Johnson points out, from a legal perspective, there really is no place for “balancing” in cases involving a conflict between a federal statute and the Constitution.    As much as the majority might view the purposes of the Act as standing on an equal footing with the Religion Clause of the First Amendment, that simply is not the case.  Between constitutional principles and federal legislation, federal legislation (such as the Act) must always give way. Second, this new standard does nothing to avoid the very entanglement that lies at the core of this debate.  While the Board will no longer determine whether an institution, as a whole, is sufficiently religious to exempt its faculty from coverage, it has merely moved its impermissible analysis to a different level – the faculty level.  It will now determine whether faculty members individually perform a sufficiently religious role, that is whether they have a “specific role in creating or maintaining the school’s religious educational environment.”  In other words, the Board “shall require that [the faculty] be held out as performing a specific religious function,” and the Board will decide what is a sufficiently “religious” function for this purpose.  For example, the Board majority notes that requiring faculty members to support the goals or missions of the religiously affiliated institution is not a sufficiently religious function to qualify for the exemption.  The Board illustrates its expectations by suggesting that faculty members must  be required to incorporate religion into their teaching or research or have religious requirements imposed on them to meet its new standard.  It goes so far as to say that requiring faculty members “to comply with norms shared by both a religion and a wider society” is insufficient to support a finding that faculty members are sufficiently religious to be exempt.  Thus apparently even if faculty members are expected to comply with specific religious tenets, if those tenets overlap with what “wider society” views as a norm (as noted by the dissent, the principles of the Ten Commandments?), that is not sufficiently religious. Ultimately, the Board’s “new” test merely moves the risk of religious entanglement from the institutional level to the faculty level, but does little to remove the risk of entanglement altogether.  It is hard to imagine this new standard passing muster under the Circuit Court’s Great Falls standard. Conclusion The Board’s Pacific Lutheran decision, coupled with its recent decisions in other areas (e.g., employee use of employer email systems for organizing purposes), its pending consideration of students as employees (whether in the context of graduate students or football players), and the recent surge in union adjunct organizing activity, promises to provide a very bumpy road ahead for colleges and universities.

Late last week, a Special Report on Rape and Sexual Assault Victimization Among College-Age Females (“Report”), for the period 1995-2013, was issued.  The results are based on information taken from the U.S. Department of Justice (Bureau of Justice Statistics’) National Crime Victimization Survey (“NCVS”).  Some of the results reflect notable differences from two other recent surveys studying rape and sexual assault in the general college age population – the National Intimate Partner and Sexual Violence Survey (“NISVS”) and the Campus Sexual Assault Study (“CSA”) – which the Report attributes to differences in the context and scope of these three surveys (the NCVS is a survey about crime while the NISVS and CSA surveys are presented in the context of public health); in definitions used;  in how questions are worded; and in mode and response rates.  However, a key element of the NCVS study is that it compares responses between “students” and “non-students,” while the other surveys do not.  As a result, despite any questions that may be raised about the differences in gross outcomes when compared to the NISVS and CSA surveys, the NCVS’ comparative information based on student status should be unaffected by methodology differences. Among the results of this Report:

• From 1997 to 2013, college age females (those ages 18-24) had higher rates of rape and sexual assault than females in other age groups (4.3 victimizations per 1,000 compared to 1.4 for females 12-17 and 25 or older)
  • And, for the 1995-2013 period, nonstudent college age females were 1.2 times more likely to experience rape and sexual assault victimization than students in the same age range, with the rate of completed rape 1.5 times higher among nonstudents;
  • For that same time period, nonstudent college age females were 1.6 times more likely to experience victimization across all types of violent crime than their student counterparts;
• Rape and sexual assault victimization was more likely to occur at or near the victim’s home for nonstudents (50% of the time) than students (38% of the time), but more likely to occur at or near the home of a friend/relative/acquaintance of a student (29% of the time) than a nonstudent (17% of the time);
• The rate at which a weapon was involved was about the same for students (11%) and nonstudents (12%);
• College age victims knew their offender at about the same 80% rate regardless of their student status, although for students the offender was more likely (50% of the time) to be a well-known or casual acquaintance than for nonstudents (37% of the time), while the offender was more likely to be an intimate partner (a former or current spouse, boyfriend or girlfriend) for nonstudents (34% of the time) than for students (24% of the time);
• In the overwhelming majority of cases, there was a single offender (95% of the time in student victimizations and 92% of the time in nonstudent cases);
• The age of the offenders was also similar regardless of student status: for students, 51% of offenders were 21-29 and 23% were 30 or older, while for nonstudents 53% of offenders were 21-29 and 23% were 30 or older;
• In the case of students, it was believed in 47% of the cases that the offender was under the influence of alcohol or drugs and in only 25% of the incidents was that not believed to be the case (the rest were unknown), while among nonstudents, offenders were believed to be under the influence of alcohol or drugs 40% of the time and not so in 36% of the incidents;
• The results showed that students were less likely to report to the police (reporting in 20% of the cases) than nonstudents (reporting in 33% of the cases);
  • Among the reasons for not reporting: it was considered a personal matter (26% for students, 23% for nonstudents), it was not important enough to the victim (12% for students, 5% for nonstudents), the victim did not think police could or would help (9% for students and 19% for nonstudents), the victim did not want to get the offender in trouble (10% for each), and the victim feared reprisal (20% for each);
• There was little difference in the (very low) proportion of student (16%) and nonstudent (18%) victims who received assistance from a victim services agency;
• For the period, there was no significant difference in the victimization rates of student and nonstudent rapes and sexual assaults among Black non-Hispanics, Hispanics, or persons of other races, but the rate of victimization among White non-Hispanic females was 1.4 times higher for nonstudents (rate of 9.2 per 1,000) than White non-Hispanic students (6.7 per 1,000);
• The rate of victimization was 1.6 times greater among nonstudents in the 18-19 age group than for students in that group, 1.5 times higher for nonstudents in the 20-21 age group compared to students, but there was a slightly higher victimization rate among students (6.0 per 1,000) than nonstudents (5.4 per 1,000) in the 22-24 age group;
• Females students in the South had the lowest victimization rate (4.7 per 1,000), while the Northeast was at 5.2, the West was at 5.9 and the Midwest was at a much higher rate of 8.3.  For nonstudents, the rate for the South was 6.5, the Northeast was 4.1, the West was 8.0 and the Midwest was, again the highest, at 11.0;
• In urban areas, nonstudents had a victimization rate that was 1.3 times higher than students (8.7 vs. 6.6); in suburban areas the rates were the same (6.0); and the victimization rate for nonstudents was almost twice that of students (8.8 vs. 4.6) in rural areas.

The numbers contained in the Report are troubling on many levels - whether it is the overall level of sexual assault and violence, the low level of reporting by victims, or the even lower level of assistance secured from victim services agencies.  About the only thing the numbers don’t demonstrate is that a college age female student is at greater risk than a nonstudent.  While the Report indicates that a female college aged student is marginally “safer” than her nonstudent counterpart, there is still much more that needs to be done – on campus and off – to combat rape and sexual assault.