Transcript Today’s Presenter

What Student Affairs
Professionals Need to Know
About the Law
Jeffrey J. Nolan, Esq.
Dinse, Knapp & McAndrew, P.C.
www.dinse.com
DINSE / KNAPP / McANDREW
www.dinse.com
Today’s Presenter
• Jeffrey J. Nolan, Esq., Attorney at Dinse,
Knapp & McAndrew, P.C.
http://www.dinse.com/attorneys/jeffrey-j-nolan.html
• Consultant to:
– Sigma Threat Management Associates
(www.SigmaTMA.com)
– Margolis, Healy & Associates (www.MargolisHealy.com)
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Agenda
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Common Law Issues
Statutory Issues
Privacy Law Issues
Practical/Risk Management Issues
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Scope of Presentation
• This is a summary of selected legal issues of
interest to student affairs professionals
• Not intended or attempting to be exhaustive
• Focus is on federal law and commonly-applied
common law principles
• Does not account for state statutes or case law
that applies only in particular states
• This is not legal advice- you should consult
with counsel about specific situations
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Common Law Duties
Whether based on potential legal duties or a
desire to follow good practice, institutions of
higher education generally strive to:
• Act reasonably to provide a campus
environment that is reasonably safe from
foreseeable risks
• Hire, training and supervise employees
appropriately
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Common Law Duties
Institutions also strive to:
• Deal reasonably with foreseeable risks posed
by identified students who may pose a risk of
harm to others
• Respond reasonably to identified potential
self-harm issues
• Provide a physically safe campus environment
and educational experience
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Common Law Duties
• Acting reasonably in accordance with standard
of care is most basic obligation
• Standard of care is informed by:
– Court decisions
– Statutes and regulations
– Widely accepted publications from reputable
organizations
– Custom, practice in field
– Opinions of experts
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Common Law Privacy Rights
• The common law privacy rights that may
protect students include:
– The right to be free of undue invasions of
privacy
– The right to be free of defamation
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Common Law Contract Issues
• Sources of potential contract obligations to
students:
– Formal contracts (e.g., housing contracts, financial
aid agreements)
– Student handbook provisions
– Other published institutional policies
• Institutions can change them, but usually are
applied by courts as written at particular time
– Institutions have more leeway in academic matters
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Constitutional Due Process
• Public institutions cannot deprive students of
right to continued participation without first
providing:
– Notice of charges
– Opportunity to be heard in defense
– Impartial decision-maker
– Report of the decision
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Statutory Civil Rights Obligations
• Federal statutes prohibit discrimination in
education on basis of:
– race, color, national origin (Title VI)
– sex (Title IX)
– disability (Section 504 & Americans with
Disabilities Act
– age (Age Discrimination Act 1975)
• State civil rights laws often include parallel,
and some expanded, prohibitions
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Federal Enforcement Context
• Department of Education’s Office of Civil Rights
(“OCR”) enforces those laws
• OCR:
– Investigates individual complaints
– Conducts agency-initiated compliance reviews
– Provides technical assistance to promote voluntary
compliance
• Theoretically can terminate federal funding, but
practically, negotiates “voluntary compliance”
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Title IX
• Title IX of the Education Amendments of 1972
(Title IX), 20 U.S.C. §§ 1681 et seq., prohibits
discrimination on the basis of sex in education
programs or activities operated by recipients of
Federal financial assistance
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OCR Title IX Resources
• April 2011 OCR Dear Colleague Letter:
http://www2.ed.gov/about/offices/list/ocr/letters/c
olleague-201104.pdf
• OCR 2001 Revised Sexual Harassment Guidance:
http://www2.ed.gov/about/offices/list/ocr/docs/sh
guide.pdf
• 2010 Dear Colleague letter on Harassment and
Bullying:
http://www2.ed.gov/about/offices/list/ocr/letters/c
olleague-201010.pdf
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Sexual Harassment Definition
• Unwelcome conduct of a sexual nature
– includes unwelcome sexual advances, requests for
sexual favors, and other verbal, nonverbal, or
physical conduct of a sexual nature.
• Student-to-student harassment:
– creates hostile environment if conduct is
sufficiently serious that it interferes with or limits a
student’s ability to participate in or benefit from
the school’s program.
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Sexual Violence Definition
• Sexual violence is a form of sexual harassment
prohibited by Title IX.
• Sexual violence refers to physical sexual acts
perpetrated against a person’s will or where a
person is incapable of giving consent due to
the victim’s use of drugs or alcohol, or
intellectual or other disability
• May include rape, sexual assault, sexual
battery, and sexual coercion
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Scope of Title IX Coverage
• Title IX protects students from sexual
harassment in an institution’s education
programs and activities, including:
– All academic, educational, extracurricular, athletic,
and other programs of the institution
– On-campus, off-campus, in transit, sponsored at
other locations, etc.
• Third parties on campus (particularly visiting
students) may be protected as well
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Selected Title IX Obligations
• If institution knows or reasonably should know about
sexual harassment that creates a hostile environment,
Title IX requires immediate action to eliminate the
harassment, prevent its recurrence, and address its
effects.
• Train employees to report harassment to appropriate
institutional officials
• Train employees with authority to address harassment,
or who are likely to witness it or receive reports, how to
respond properly
– OCR examples: “teachers, school law enforcement unit
employees, school administrators, school counselors,
general counsels, health personnel, and resident advisors.”
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Selected Title IX Obligations
• Investigate complaints adequately, reliably and
impartially
• Provide grievance procedures that promote
prompt, equitable resolution of complaints
• Undertake education and prevention efforts
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Title IX/Police Investigation Issues
• Police investigations are not determinative of
whether sexual harassment/violence violates Title
IX
• Police investigations do not relieve institutions of
Title IX duty to resolve sexual violence
complaints promptly and equitably
• Institutions cannot wait for the conclusion of a
criminal investigation or criminal proceeding to
begin their own Title IX investigation and, if
needed, must take immediate steps to protect the
student in the educational setting
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Title IX Intake Issues
• Employees likely to receive complaints
initially (e.g., medical, counseling, public
safety, coaches, residence life, student affairs,
etc.) must:
– Be trained to recognize reports of sexual
harassment and sexual violence
– Know where on campus (and off-campus) to direct
complainants for further support, procedures, etc.
– Understand limits on requests for confidentiality
– Understand what “not to say” in intake discussion
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Title IX/Interim Measures Issues
• Consider whether interim measures are appropriate
immediately upon receiving complaint
• Examples include:
– Separating the parties (changing academic schedules,
housing)
– Instructing the respondent not to have contact with the
complainant or to go to areas where the complainant is
expected to be present
– Interim suspension: Justified if the respondent’s remaining
part of the community appears reasonably to pose a risk of
danger (e.g., stalking, further violence, retaliation); At
public institutions, offer a pre-suspension hearing
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Title IX/Confidentiality Issues
• “If the complainant requests confidentiality or
asks that the complaint not be pursued, the school
should take all reasonable steps to investigate and
respond to the complaint consistent with the
request for confidentiality or request not to pursue
an investigation.”
• “If a complainant insists that his or her name or
other identifiable information not be disclosed to
the alleged perpetrator, the school should inform
the complainant that its ability to respond may be
limited.”
April 4, 2011 Dear Colleague Letter
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Title IX/Confidentiality Issues
• “In some cases, such as those where the school is
required to report the incident to local law enforcement
or other officials, the school may not be able to
maintain the complainant’s confidentiality.”
• “The school should inform the complainant if it cannot
ensure confidentiality.”
• “Even if the school cannot take disciplinary action
against the alleged harasser because the complainant
insists on confidentiality, it should pursue other steps to
limit the effects of the alleged harassment and prevent
its recurrence.”
– (e.g.: education and prevention programs)
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Title IX/Confidentiality Issues
• If complainant continues to insist on complete
confidentiality, institution “should evaluate that request
in the context of its responsibility to provide a safe and
nondiscriminatory environment for all students.”
• Institution may weigh confidentiality request against:
– seriousness of the alleged harassment;
– complainant’s age;
– whether there have been other harassment complaints about
the same individual; and
– the alleged harasser’s potential right to review documents
re allegations if contained in a FERPA “education record”
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Requests for Confidentiality – Suggested
Solutions (IF No Current/Future Threat)
• Let student know about confidential campus resources
• offer to walk there with the student or have staff
come to your office to see the student
• Be clear that institution wants to help and when student
is ready for institution to act, to come back to talk
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Requests for Confidentiality – Suggested
Solutions (IF No Current/Future Threat)
• Make sure your confidential campus resources are
knowledgeable about your policies and procedures
• Be certain you know and have defined in published
policies who is and who is not “confidential” for state
privilege and Clery Act purposes
• Be certain your confidential resources are trained re
Title IX, and support institutional processes
• Document communications and resolution
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Campus Sexual Violence Elimination
Act (“Campus SaVE Act”)
• Part of Violence Against Women
Reauthorization Act (“VAWRA”) of 2013
• Intended to: amend the Higher Education Act
“to improve education and prevention related
to campus sexual violence, domestic violence,
dating violence, and stalking”
• Violence Against Women Act (1994) comes to
campus
• Effective March, 2014
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VAWA Definitions
• “Domestic violence” means crime of violence
committed by spouse, cohabitant, parent of victim’s
child, or similarly situated person
– as relationships/protections are defined under state
domestic or family violence laws
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VAWA Definitions
“Dating violence” means violence committed by a
person
– Who is or has been in a social relationship of a romantic or
intimate nature with the victim
– Where the existence of such relationship is determined
based on consideration of:
Length and type of relationship and
Frequency of interaction between persons involved
Train campus on state law definition of dating
violence
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VAWA Definitions
• “Stalking” means engaging in a course of conduct
directed at a specific person that would cause a
reasonable person to:
– Fear for his or her safety or the safety of others; or
– Suffer substantial emotional distress
• Train campus on state law definition of
stalking
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New Policy Requirements
• Each IHE receiving federal funding under HEA must
develop and distribute in its Annual Security Report a
statement of policy regarding
– The institution’s programs to prevent domestic violence,
dating violence, sexual assault, or stalking; and
– the procedures that the institution will follow once an
incident of domestic violence, dating violence, sexual
assault, or stalking has been reported
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Advocacy Statements
Policy statements must provide:
• Notification about existing counseling, health, mental health,
victim advocacy, legal assistance, and other services available
to victims both on-campus and in the community
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Confidentiality Statements
• Clery Act “timely warnings” must “withhold the
names of victims as confidential”
• Must include statement of:
– “Information about how the institution will protect the
confidentiality of victims, including how publicly-available
recordkeeping will be accomplished without the inclusion
of identifying information about the victim, to the extent
permissible by law.”
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Procedural Statements
Policy statements must cover:
• Possible sanctions or protective measures that the
institution may impose following the final
determination of an institutional disciplinary
procedure regarding rape, acquaintance rape, DV, DV,
SA or stalking
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Procedural Statements
Policy statements must cover:
• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:
– Importance of preserving evidence as may be necessary to
proof of criminal DV, DV, SA or stalking, or in obtaining
protective order
– To whom offense should be reported
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Procedural Statements
Policy statements must cover:
• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:
– the right of victims of such offenses to notify proper law
enforcement authorities, including on-campus and local
police;
– the option to be assisted by campus authorities in notifying
such authorities if the student or employee so chooses; and
– the right of victims of such offenses to decline to notify
such authorities;
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Procedural Statements
Policy statements must cover:
• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:
– Where applicable, the rights of victims and the institution’s
responsibilities regarding orders of protection, no contact
orders, restraining orders, or similar lawful orders issued by
a court
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Procedural Statements
Policy statements must cover:
• Procedures for institutional disciplinary action in
cases of an alleged incident of DV, DV, SA or
stalking, which shall include a clear statement that
such proceedings shall:
– provide a prompt, fair and impartial investigation and
resolution;
– be conducted by officials who receive annual training on
issues related to DV, DV, SA, and stalking and how to
conduct an investigation and hearing process that “protects
the safety of victims and promotes accountability”;
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Procedural Statements
• Must include statement of the standard of evidence
that will be used in cases involving DV, DV, SA or
stalking
– Campus SaVE Act does not mandate particular (i.e.,
preponderance of evidence) standard
– Office of Civil Rights Dear Colleague Letter requires, as
matter of OCR enforcement policy, preponderance of
evidence standard
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Procedural Statements
• Campus SaVE: both parties are entitled to
same opportunities to have others present
during disciplinary proceedings
– Including opportunity to be accompanied to any
related proceeding or proceeding by an advisor of
their choice
• Time will tell as to whether that could include
legal counsel
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Procedural Statements
• Both parties must be simultaneously informed in
writing of the outcome of any disciplinary proceeding
that arises from allegation of DV, DV, SA or stalking
• FERPA note: In cases that involve sexual harassment,
but not sexual violence, complainant can only be
informed of those sanctions directly related to
complainant, such as an instruction to respondent not
to have any contact with complainant
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Procedural Statements
Policy statements must cover:
• Institution’s procedures for both parties to appeal the
results of disciplinary proceeding
• Notice of any change to the results before they
become final
• When such results become final
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Procedural Statements
Policies and procedures to ensure that student or
employee who reports that he/she has been the victim of
DV, DV, SA, or stalking:
• shall receive information about options for, and available
assistance in, changing academic, living, transportation,
and working situations
• if such assistance is requested by the student or employee
and if such accommodations are reasonably available
• Regardless of whether victim chooses to report to campus
police or local law enforcement
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Anti-Retaliation Provision
No officer, employee, or agent of an IHE “shall
retaliate, intimidate, threaten, coerce, or otherwise
discriminate against any individual for exercising their
rights or responsibilities under any provision of this
subsection”
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Educational Requirements
Campus SaVE requires description of education programs to
promote awareness of offenses of DV, DV, SA and stalking,
which shall include:
• primary prevention and awareness programs for all incoming
students and new employees, which shall include:
– statement that institution of prohibits offenses of DC, DV,
SA and stalking;
– definition of DV, DV, SA and stalking in applicable
jurisdiction;
– the definition of consent in reference to sexual activity in
jurisdiction;
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Educational Requirements
Campus SaVE requires description of educational
programs regarding:
• Safe and positive options for bystander intervention;
• Information on risk reduction to recognize warning
signs of abusive behavior and how to avoid potential
attacks; and
• ongoing prevention and awareness campaigns for
students and faculty
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Clery Act Basic Requirements
• Collect specified crime and fire statistics and
create mandated daily logs, annual reports, etc.
• Adopt and publish specified safety/securityrelated policy statements
• Adopt timely warning, emergency notification
and missing student policies and procedures
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Clery “Campus Security Authorities”
• Campus police/security department/access
monitors
• Individual or offices designated to receive
crime reports
• Officials with significant responsibility for
student and campus activities, e.g.:
– Resident assistants
– Student housing, student life and athletics staff
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Clery “Campus Security Authorities”
• CSAs must:
– “report allegations made in good faith to the reporting
structure established by the institution.”
– “A crime is reported when it is brought to the attention
of a campus security authority or the local police by a
victim, witness, other third party, or even the
offender.”
– IHE must disclose crime reports regardless of whether
any of the individuals involved in either the crime
itself, or in the reporting of the crime, are associated
with the institution
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Clery Enforcement
• Dep’t of Ed. has stepped up Clery enforcement
significantly in recent years
• Fines of $35,000 per violation are possible
• Six-figure fines as result of compliance
reviews/investigations are becoming
commonplace
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Americans with Disabilities
Act/Section 504 Scope
• A student is protected under the ADA, as broadened
substantially by the ADA Amendments Act of 2008
(“ADAAA”), if he or she has a “disability,” defined as
follows:
– A physical or mental impairment that substantially
limits one or more major life activities, or conditions
affecting the operation of major bodily functions
• “Disability” includes: mental health conditions which
substantially limit an individual’s ability to learn,
concentrate, think, and communicate
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ADA/Section 504 Scope
• Disability laws also prohibit discrimination
against an individual who:
– Has a “record” of having a disability such as
– A past diagnosis of mental illness which is in
remission at the time of assessment, or
– Past participation in a drug abuse treatment
program
OR
• Is “regarded as” having a disability
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“Direct Threat” Issues
• Under the “direct threat” exception, an
institution can determine that an otherwiseprotected individual’s disability-related
behavior or misconduct cannot be tolerated or
accommodated
• “Direct Threat” means “a significant risk to the
health or safety of others that cannot be
eliminated by reasonable accommodation”
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Direct Threat
In determining whether an individual would pose
a direct threat, the factors to consider include:
The duration of the risk
The nature and severity of the potential harm
The likelihood that the potential harm will occur
The imminence of the potential harm
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“Threat to Self” Issues
• Under current DOJ/OCR position:
– “Threat to self” cannot fall within “direct threat”
exception
• Must deal with threat to self situations (e.g.,
suicide attempts, life-threatening eating disorders,
etc.) as disciplinary, voluntary withdrawal, or “not
otherwise qualified” matters
• Don’t forget that students must be “otherwise
qualified” to participate in institution’s academic
and residential programs
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FERPA Fundamentals
• Unless an exception applies, FERPA prohibits
nonconsensual disclosure of information from
education records which is personally identifiable
or easily traceable to an individual student
• Education record means any information recorded
in any way and maintained by institution
• Disclosure without consent may be made to
school officials with “legitimate educational
interest” in receiving information
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Pertinent FERPA Exceptions
• Law enforcement unit records:
– Records created by security department/campus police
department that were created for a law enforcement
purpose
– Only applies if in the hands of campus
security/campus police
• Health or safety emergency:
– Institution may disclose records without consent to
appropriate parties (including parents) in connection
with an emergency if knowledge of the information is
necessary to protect the health or safety of the student
or other individuals
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Pertinent FERPA Exceptions
• Disclosure to other institutions where the
student seeks or intends to enroll
– Subject to the requirements of § 99.34 regarding
specific or general notice of disclosure to the
student
• Disclosure to parents of dependent students
• Disclosure pursuant to judicial order or
lawfully issued subpoena
• Student treatment records
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FERPA Enforcement
• No private right of action to enforce FERPA
– Means IHEs cannot be sued for violating FERPA
(though they should be careful not to “promise” in
student handbook that they will comply)
• Family Policy Compliance Office that enforces
FERPA does not fine institutions, attempt to
terminate federal funding or do intensive
investigations
• Instead, seeks assurance of future compliance and
provides technical assistance
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Health Insurance Portability and
Accountability Act
• HIPAA usually applies, for practical purposes,
only where institution engages in certain “covered
transactions” (e.g., billing) electronically for
health care services
• Some institutions apply and adopt more broadly
given health care-related operations
• Practical approach: if HIPAA is being cited by
another institutional official to restrict sharing of
information you need, dig deeper to understand
whether really applies or not
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HIPAA
• If HIPAA does apply to your institution generally:
– HIPAA does not apply to “student treatment records”
(e.g., counseling/student health ctr.)
– Student treatment records are covered by FERPA and
therefore are deemed exempt from HIPAA
– So, FERPA principles and exceptions apply
• HIPAA exception permits disclosure where
necessary to prevent or lessen a serious and
imminent threat to the health and safety of a
person or the public
– Can disclose to people reasonably able to prevent or
lessen threat (including to target)
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Documentation Issues
• Prudent to treat sensitive student information
“confidentially”
– That is, on a need to know basis with others within
the institution
• Recognize that even “confidential”
information will generally be subject to
disclosure in the event of a civil rights
enforcement agency investigation or litigation
unless it constitutes privileged attorney-client
communication
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Documentation Issues
• Definition of documentation potentially
subject to disclosure is very broad
• Usually includes:
– electronically stored information
– e-mail messages
– “personal notes”
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Risk Management Approaches
• Student care teams
• Threat assessment and management
teams
• Case management approaches
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Contact Information
Jeffrey J. Nolan, Esq.
Dinse, Knapp & McAndrew, P.C.
Burlington, Vermont
www.dinse.com
[email protected]
(802) 864-5751
http://www.dinse.com/attorneys/jeffrey-jnolan.html
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