Inside Higher Ed recently released its 2013 Survey of College & University Human Resources Officers, conducted on its behalf by Gallup.  If you have not already reviewed a copy, you can download a copy here.    The survey covers a wide range of HR subjects, from adjunct compensation and benefits, to retirement issues, to discrimination, and many topics in between.  Among the more interesting survey findings from HR professionals at the 399 responding institutions (206 of which were public, 171 were private and 7 were for-profit): 

• 62% were moderately concerned or very concerned about faculty members working past traditional retirement age and 53% were moderately concerned or very concerned that their institutions lacked sufficient retirement incentives for faculty, even though (on a scale of 1 to 5, with 1 being strongly disagree and 5 being strongly agree) 63% responded with a score of 3 or higher that their institution offered sufficient phased retirement options for faculty. 

• With respect to adjunct faculty, 80% responded with a score of 3 or higher that their institutions fairly compensated their adjunct faculty, while 67% responded with a score of 3 or higher that their institutions provided an “appropriate” benefits package for adjunct faculty (although only 24% indicated that they actually provided health insurance for adjunct faculty).  Seventy-five percent responded with a score of 3 or above that their institutions provided appropriate job security and due process protections for adjunct faculty.  Interestingly, 48% of the respondents indicated that their institutions were placing or enforcing limits on adjunct faculty hours in order to avoid having to meet the requirements for employer-provided health insurance under the Affordable Care Act. 

• With respect to benefits generally available on their campuses, 53% of respondents indicated that telecommuting was permitted, 78% indicated that “family-friendly” work policies were in place; 81% had wellness programs (but only 30% provided financial rewards/benefits for healthy employees); and 77% provide financial support for children of employees to pursue post secondary education.  However, the responses indicated that HR professionals thought their institutions could do more: 76% of respondents thought there SHOULD be telecommuting permitted, 94% thought there SHOULD be family friendly policies, 98% thought there SHOULD be wellness programs in place, 82% thought there SHOULD be financial rewards/benefits for healthy employees, and 88% thought there SHOULD be financial support for employees’ children for post secondary programs. 

• 50% of respondents indicated that they were paying “more attention” to long term employees with declining job performance. 

• 62% indicated that they were paying “more attention” to implementing performance evaluation measures. 

• Only 40% indicated that they were paying “more attention” to addressing ADA and similar mandates regarding disabilities. 

• 88% of respondents indicated that their institutions had a nondiscrimination policy regarding sexual orientation and 74% had a nondiscrimination policy regarding gender identity. 

• Finally, 61% of the respondents responded with a score of 3 or higher that HR is blamed for unpopular changes or reductions in employee benefits and services.

In today’s environment, with colleges and universities facing rising expenses and pressure to refrain from increasing tuition and other charges, the cost of legal compliance at the federal, state and local levels is a significant, and seemingly never-ending, concern.  Last month saw the prospect of relief, or at least a sympathetic ear, at the federal level. On November 18, members of the U.S. Senate Education Committee announced the formation of the Task Force on Government Regulation of Higher Education, comprised of 14 college presidents and higher education industry experts, for the stated purpose of studying the burdens of federal regulation on higher education.  The Task Force, convened by Senators Lamar Alexander (R- Tennessee), Michael Bennet (D- Colorado), Richard Burr (R- North Carolina) and Barbara Mikulski (D-Maryland), is to conduct “a comprehensive review of federal regulations and reporting requirements affecting colleges and universities and make recommendations to reduce and streamline regulations, while protecting students, institutions and taxpayers.” A particular focus of the Task Force’s review will be the contention that government “red tape” inflates costs and stifles innovation. It is contemplated that the Task Force’s recommendations will be made available for consideration in connection with congressional discussion over reauthorization of the Higher Education Act. Though a healthy dose of skepticism is understandable, and likely warranted, as to the prospect of meaningful regulatory relief, the work of the task force and congressional reaction to it bears watching.

From time to time, institutions will find themselves in a dispute with a donor, a donor’s descendants (in jurisdictions that allow standing for such actions), and or state attorneys general or other regulators, over the appropriate use of a prior gift.  A recent case involving The Johns Hopkins University is the latest to illustrate the importance of the language used in any gift, or other contractual, instrument. In the late 1980’s, the University was the beneficiary of the purchase of an undeveloped piece of property for a price that was about one-third of the fair market value of the parcel.  The seller was a well recognized critic of development in Montgomery County, Maryland.  She sold the property at a reduced price to the University (recognizing the excess value of the transaction as a charitable contribution) rather than succumb to numerous offers for the property’s commercial development, and with the apparent expectation for the University to develop it as a pastoral-like University campus.  Accordingly, the contract and deed restricted the University’s use of the parcel to “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes only, which uses may specifically include but not be limited to development of a research campus in affiliation with one or more divisions” of the University.  After plans were approved to allow for rezoning of the parcel to permit much higher density use of the property than, according to the donor’s surviving family, the donor would ever have considered acceptable, the family commenced litigation to prevent the University from moving forward. Ultimately the Maryland Court of Appeals determined that the restrictions in the deed and contract were “unambiguous” and allowed the development the University sought.  The Court found that there was no dispute that the University’s plan sought only to pursue “agricultural, academic, research and development, delivery of health and medical care and services, or related purposes” as specified in the restriction.  The dispute was whether the contract and deed restricted the scale and density of that development and whether they required “Hopkins qua Hopkins to own and operate the buildings and programs” on the property. While the Court noted that the donor’s family was “no doubt … genuinely aggrieved” by the University’s plans to deviate from the donor’s thoughts regarding the future use of the property, the Court noted that its “task is to examine the agreement the parties did sign, not the agreement that one or the other now wishes they had negotiated instead.”  Relying on basic contract construction principles, the Court rejected the family’s contention that the restriction on “its [the University’s] use” of the property to the specified purposes meant that only the University could own or occupy that property and that it prohibited leasing any portion of the property to third parties:  “We cannot see why Hopkins leasing the property to others to accomplish one or more of the listed purposes does not qualify as a use by Hopkins….Here, the [property] will be used for an indisputably approved purpose, and nothing in [the deed or contract] restricts how or through whom the Buyer, Hopkins, can carry out those purposes.”  The Court also rejected the family’s argument that the mere reference to a “campus” use imposed scale and density restrictions on the University’s development of the parcel. Ultimately the Court found that the unambiguous language of the deed and contract did not preclude the University from moving forward with its plans, notwithstanding the seller’s intent.  Had the language been less clear, the result could have been different, in that the seller’s intent might have functioned to further restrict the University in its actions.  This possibility highlights the importance of careful drafting in gift instruments.  While institutions may be understandably reluctant to test donors’ patience by negotiating extensively over language in a gift instrument, they should always keep in mind that needs and resources change over time.  Restrictions, especially on real property, which an institution may see as workable at the time a gift is made, may prove far less workable when it comes time to actually make use of the gift.  As a result it is important to make sure that gift instruments provide sufficient flexibility to the institution to allow it to deal with the gift in an appropriate manner, and/or to modify the permitted use as desired, as circumstances change several decades or more into the future.  Clarity in this regard may not only help prevent years of costly litigation and/or regulatory scrutiny, but it can also help to avoid public disputes that can negatively impact its relationship with future donors.

In the private sector, most full-time (tenured/tenure track) faculty are currently considered “managerial” under the National Labor Relations Act (“NLRA”), making them ineligible for the protections of the NLRA, including the right to organize and bargain collectively.  (Managers and supervisors are not considered “employees” under the NLRA.)  Managerial status does not preclude an institution from voluntarily recognizing a faculty union, but it does prevent faculty from compelling a unionization vote under the NLRA.  At the risk of oversimplifying, what makes most private sector full-time faculty managerial is their shared governance role. Adjuncts, or contingency faculty, on the other hand are often not included in the shared governance model.  The Chronicle recently reported on a study presented at this year’s Association for the Study of Higher Education (“ASHE”) annual conference on adjuncts and shared governance.  According to The Chronicle’s report, the Study examined more than 100 research universities in an attempt to quantify adjuncts’ involvement in governance.  The Study found that at about two-thirds of the institutions studied, faculty senates were off-limits to adjunct instructors who had less than half the workload of a full-time faculty member.  The remaining one-third of institutions were about evenly split between those whose faculty senates were more open to adjuncts and those whose senates were more restrictive in terms of access for adjuncts.  Interestingly, these results are inconsistent with AAUP’s view, reflected in a report  issued in late 2012  which recommended that eligibility for voting or holding office in shared-governance bodies should be the same for all faculty, regardless of their full-time or part time status. Because adjuncts, who along with others who constitute the “contingent” faculty that now comprise perhaps as much as 75% of higher education teaching ranks, do not participate in shared governance, they generally are not considered managerial under the NLRA.  As a result, they are entitled to compel unionization through the National Labor Relations Board’s election procedures.  And over the past several years, adjuncts at a number of institutions have actively pursued this path, often with a fair degree of success. For example, when adjuncts at Georgetown University voted to unionize this past May with SEIU Local 500, it purportedly raised the number of adjuncts in the District of Columbia organized by Local 500 to more than 75% (including adjuncts at previously organized American University, George Washington University, and public Montgomery College) .  The potential long term impact of achieving this level of “density” success across all of D.C. is apparent.  More recently, a similar "regional" approach was started by SEIU in Boston.  Operating under the name Adjuncts Action, adjuncts at Tufts University voted to unionize this past September, and unionization efforts are underway at Northeastern University and Lesley University.  This effort suffered a setback in late October when adjunct faculty at Bentley University in Boston voted 100-98 against unionization.  (Objections to the election outcome have been filed and are pending.)  Despite this setback, the trend appears clear and institutions should expect efforts to organize adjunct faculty will continue, and likely expand, across the country. While there are a number of factors that undoubtedly contribute to adjuncts’ interest in organizing, and economic factors are often prominently noted, in reality experience suggests that it may often be non-economic factors that ultimately drive the outcome.   As with any other employee group, non-economic factors are often as important as economic factors when it comes to unionization.  In this context, the more critical question may be how are adjuncts treated on their campuses?  Are they welcomed and received by the rest of the campus community as important contributors to the overall mission, or not?  Ironically, it can often be their relationship with their full-time colleagues that creates a tension and feeling of disrespect (or at least insufficient respect) which is a contributing factor in unionization decisions.  In other words, an interest in securing an institutional voice like their full-time colleagues may drive the outcome as much as anything else.  As noted, at most institutions examined in the ASHE Study, adjunct involvement in shared governance is limited and that voice does not exist.  Yet, at least one faculty study has concluded that involvement in meaningful shared governance may be a more important indicator of faculty satisfaction than economic factors.  There is little reason to think this conclusion is not as relevant for contingent faculty as it is for full-time faculty. The moral?  Institutions should consider promoting the involvement of their adjuncts in governance matters.  Not only may it result in more satisfied adjuncts, but it might also impact their status as possibly "managerial" members of the institution.

Many colleges and universities are federal contractors and, as such, need to comply with Department of Labor, Office of Federal Contract Compliance Programs’ (“OFCCP”) regulations relating to affirmative action.  Revised Regulations have been issued by OFCCP addressing affirmative action obligations applicable to disabled individuals under the Rehabilitation Act of 1973, as amended ("Section 503"), and to protected veterans pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended ("VEVRAA"), and become effective March 24, 2014. Due to the numerous requirements in these new Regulations, higher education institutions that are federal contractors should start reviewing and implementing procedures to ensure compliance. Ten steps that covered institutions should implement by March 24, 2014 include:

1.         Review current electronic systems and databases to determine if there is capacity to capture protected veteran and disability status for both applicants and employees. If not, institutions will need to invest in new systems or methods to capture this required data.

2.         Review current referral sources to determine if sources are providing qualified protected candidates; sources that are not should be eliminated and/or new ones should be added. This is a key component for meeting the 8% hiring benchmark under VEVRAA and the 7% utilization goal under Section 503.

 

3.         Ensure all required notices are posted. Where notices are posted electronically, make sure they are accessible to all employees, including those with disabilities. For covered institutions that use electronic or internet-based application processes, an electronic notice must be posted and stored with the electronic application to inform job applicants of their EEO rights.

4.         Review collective bargaining agreements to determine if the agreements include notice of the institution’s affirmative action and non-discrimination policies and request for cooperation. If they do not, institutions should send annual letters to each union, notifying the union(s) of the policies and requesting cooperation.

5.         Review and update the list of all existing subcontracts, including vendors and suppliers, who should be receiving the mandatory written notice to subcontractors of the institution’s affirmative action efforts and request for cooperation.

6.         Revise contracts and purchase orders to include the revised mandatory EEO language under both Section 503 and VEVRAA.

7.         Make sure solicitations and advertisements include all the protected categories – minorities, females, disabled individuals, and veterans. OFCCP has indicated in recent FAQs that just using "D" and "V" is not adequate since abbreviations must be commonly understood by jobseekers.

8.         Update recordkeeping procedures to incorporate the three-year retention requirement for specific records under Section 503 (documentation and assessment of external outreach and data collection analysis) and VEVRAA (documentation and assessment of external outreach, data collection analysis, and benchmarking records).

9.         Revise self-identification forms inviting applicants to self-identify at both the pre-offer and post-offer stage of the selection process. All Section 503 invitations must use the new OFCCP form which will be posted on OFCCP’s website once approved. Under the Section 503 Regulations, employees must be invited to self-identify again every five years and reminded on an annual basis that they can voluntarily update their status at any time.

10.       Adopt written reasonable accommodation procedures to ensure uniformity in processing requests. The OFCCP’s guidance for creating procedures (listed in Section 503 Regulations as Appendix B) can be used in developing such procedures.

Google Books is a groundbreaking project launched in 2004 to scan and digitize books all over the world.  Currently more than 20 million books have been digitized and are available for searching, with “snippets” of books being presented to users as search hits. In 2005, the Authors Guild and several other plaintiffs filed suit against Google in the Southern District of New York, alleging that the digitization and display of millions of books not within the public domain constituted copyright infringement. Last week, the court issued a decision on cross-motions for summary judgment on the sole issue of whether Google Books constitutes fair use under 35 U.S.C. § 107.  The Authors’ Guild, Inc. v. Google Inc., 05 Civ. 8136 (DC) (S.D.N.Y. Nov. 14, 2013).  After first assuming that the plaintiffs had established a prima facie case of copyright infringement, Judge Chin analyzed the four statutory fair use factors individually and concluded that Google’s actions do indeed constitute fair use.

a.      Purpose and Character of Use

The first factor is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Here, Judge Chin found that Google Book’s use of the copyrighted works was “highly transformative,” as the snippets allow users to identify and locate books.  Further, the ability to data mine the digitized books has resulted in entirely new fields of research.  Judge Chin also noted that Google does not sell the scans it creates and does not run ads on the pages that contain snippets. Accordingly, this factor weighed strongly in favor of Google.

b.      Nature of the Copyrighted Works

The second factor is “the nature of the copyrighted work,” with works of fiction typically entitled to greater copyright protection.  Since the Google Books database is overwhelmingly non-fiction, with only about 7% of the books constituting fiction, this factor favored fair use.

c.       Amount and Substantiality of the Portion Used

The third factor is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  Although Google reproduces the entirety of the books that it scans, it limits the amount of text that is displayed to the user in response to a search of the Google Books database.  Without any significant analysis, Judge Chin held that this factor weighed “slightly against” a finding of fair use.

d.      Effect of Use Upon Potential Market or Value

The fourth and final factor is “the effect of the use upon the potential market for or value of the copyrighted work.”  The plaintiffs argued that Google Books negatively impacts the market for books by effectively serving as a market replacement.  Refuting this argument, Judge Chin countered that “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders,” as consumers use Google Books to identify books that otherwise would be left undiscovered.  As a result, the fourth factor also weighed strongly in favor of fair use. Weighing all four factors together, Judge Chin ruled that Google Books constitutes fair use and advances the progress of the arts and sciences while concurrently considering the rights of authors and copyright holders. Higher Education Digitization Projects Many colleges and universities are repositories of books with questionable or unclear copyright status, and several have considered or begun digitization projects.  Following this decision and a comparable decision in Authors Guild v. HathiTrust 902 F.Supp.2d 445 (S.D.N.Y. Oct. 10, 2012) under a similar set of facts, these digitization projects may have a strong foundation in fair use if they are non-commercial, limit the amount of a work displayed, and largely focus on non-fiction works. The HathiTrust decision has already been appealed, and many predict that the Google decision will have a similar fate.  Stay tuned here for future developments.

There is no denying that sexual misconduct on campus is a major issue for all institutions today, from both a campus “quality of life” and a risk management perspective.  With all the attention sexual misconduct cases are generating, an appropriate question to consider is what role should the Board of Trustees play in these issues?  The Association of Governing Boards of Universities and Colleges (“AGB”) recently addressed this question.  In its Advisory Statement on Sexual Misconduct, the AGB suggested several practices for governing boards and institutional administrative leadership.    Recognizing the Board’s fiduciary duty to address issues related to the overall campus culture, including sexual misconduct, AGB advises that: 

• governing Boards should monitor sexual misconduct issues consistent with their oversight of other forms of institutional risk (which requires a balancing that avoids micromanagement but permits being adequately informed so that it can assess institutional effectiveness);
• Boards should regularly request formal reports from administration detailing the nature of the risk, the likelihood of its occurrence, and the existence and effectiveness of internal controls for risk mitigation (from an overall perspective and not necessarily in terms of any individual case);
• Boards should encourage dialogue on sexual misconduct, and other issues that are important to the institution’s well being (AGB points out that “scrutinizing information, asking difficult questions, challenging assumptions, and introducing innovative ideas[,] improves the quality of institutional outcomes.”);
• Boards should promote this dialogue by:
  • discussing legal developments and national trends related to Title IX and sexual misconduct, and making sure they are sufficiently informed as to where their institution stands in terms of compliance with those developments and in light of national trends;
  • discussing these issues with the institution’s administrative leadership and planning for discussions of these issues on an ongoing basis with that leadership (as part of this effort, Boards need to determine what form these discussions will take – will they be with the full board or a board committee -- and establish an appropriate expectation for the administration to keep the Board (or appropriate committee informed);
  • reviewing the institution’s policies in this area and being aware of how they are implemented;
  • confirming that a Title IX Coordinator has been named (and who it is), appropriate training is being provided to members of the institutional community, all parties (complainant and accused) are being treated equally, fairly, and adequately, and the institution is monitoring its overall climate as it relates to sexual misconduct. 

With respect to administrative leadership, AGB suggests: 

• the institution’s chief executive (with support from others) ensure that the Board receives relevant information regarding these issues and engage the Board in periodic briefings about this topic, both in terms of legal developments and the institution’s response;
• the chief executive ensure that the Board receives sufficient information to facilitate its effective review of institutional response to sexual misconduct and that this issue is properly part of the Board’s agenda and part of the orientation for new Board members; and
• the chief executive also ensure that the rest of the institutional community – staff, faculty and students – are aware of the Board’s commitment to campus safety and oversight of related policies. 

These guidelines provide an excellent starting point for ensuring that the Board is properly engaged on this very important topic.  While, as noted by AGB, caution needs to be exercised to avoid micromanagement of the institution, the issue of sexual misconduct is simply too big an issue, on any number of levels, for the Board to fail to get involved and exercise appropriate oversight.

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

The recent experience of Dominican College in New York should serve as a reminder to all institutions of the importance of accurate Clery Act reporting.  In 2009, Dominican College was subjected to a U.S. Department of Education program review for the 2006 and 2007 periods.  In 2013, the Department of Education finally determined that the College had failed in its Clery Act reporting obligations in several respects, notwithstanding the College’s efforts at correcting those errors upon notification of the deficiencies by the Department.  According to the Department’s findings, the College reported inaccurate crime statistics, it did not properly define and report crimes statistics separately for non-contiguous facilities, it did not properly and timely distribute its Annual Security Report and its report did not contain required policy statements, and it did not maintain accurate daily crime logs. The College was initially fined $262,500 for these violations.  Following an appeal, the fine was reduced a few weeks ago by the Department to $200,000 by way of a settlement agreement between the Department and the College. Understanding, and complying with, the requirements of the Clery Act and its reporting obligations is not only “the law,” but it should be clear given Dominican College’s recent experience that it just makes good economic sense. Speaking of the Clery Act, the Department has recently announced its intention to establish a negotiated rulemaking committee to prepare proposed regulations to address the changes to the campus safety and security reporting requirements in the Clery Act as a result of the Violence Against Women Reauthorization Act of 2013 (VAWA).

In a unanimous decision issued on October 31, 2013, the Virginia Supreme Court, in the case of Commonwealth of Virginia v. Peterson, held that as a matter of law, officials at Virginia Tech were not negligent in failing to warn students who were killed by a gunman on its campus in April 2007.  Specifically, the court ruled that the danger to students from the gunman’s second round of killings was not known or reasonably foreseeable to officials. The Court reasoned as follows:

In this case, the Commonwealth knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered.  The Commonwealth also knew that the shooter had not been apprehended.  At that time, the Commonwealth did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime.  However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims.  Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others (emphasis in original).

The decision set aside a 2012 jury verdict against the Commonwealth which awarded $4,000,000 to the families of two students who were killed (which was subsequently reduced to $100,000 per family). Although this decision provides some comfort to institutions, the standard of vigilance expected of colleges and universities has indisputably changed since the Virginia Tech shooting (as have their obligations to warn their campus communities); in addition Department of Education enforcement proceedings arising out of the incident remain unresolved.  As a result, institutions should remain vigilant in designing, testing and deploying systems and processes to ensure the timely dissemination of information in emergency situations.

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

1. if a recipient of federal financial assistance knows or has reason to know about sexual harassment which creates a hostile environment, it must take immediate action to eliminate it, prevent its recurrence and address its effects;
2. when responding to any complaint of sexual harassment, a recipient must take immediate and appropriate action to investigate or otherwise determine what occurred;

• if that investigation reveals that discriminatory harassment occurred, the recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent recurrence;

1. these duties exist regardless of whether a student has complained, asked the recipient to take action, or identified the harassment as a form of discrimination.

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

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

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

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