2014 Legal Issues in Higher Education

October 14, 2014

8b - Have Risk, Will Travel – Part II: Managing Student Affairs Issues and Compliance Abroad

Presented by: Seth F. Gilbertson, Associate Counsel, SUNY Office of General Counsel Acknowledgements: Joe Storch; Stacy Tsantir

On the Docket

• • • • • • • Clery reporting and international programs Title IX issues with international programs Conduct issues in international programs International program leadership Emergency management Health and medical issues Drafting and applying policies for study abroad

Clery on Tour

• • Just as with stateside reporting, Clery does not require you to report crimes based on WHO Clery requires you to report crimes based on WHERE Example: Two strangers are robbed by a third stranger while walking across the campus quad (they were not invited and had no business being there).

Report

Reportable Places

• On-Campus: – All campuses of the institution.

– At a Separate Campus, defined as a geographic location staffed by administrative personnel and where a student can take an organized program of study. An “organized program of study” means an entire educational program from which a student can attain a degree, diploma, or certificate. It does not include locations where a student can simply take some courses.

At any location designated as On Campus property, the institution will also collect and include crimes occurring in Public Property adjacent to and accessible from the On Campus property.

Reportable Places

• Clery Act crimes are reportable as non campus incidents if they occur: In space that the institution owns or controls (control requiring only a formal agreement for use, such as a lease or rental agreement) overseas that are used to support the institution’s mission and are frequently used by students (i.e. not just administrative offices); – The same hotel/hostel is used on a regular basis (multi year or semester); or – It is a "trip of longer duration" • Define by policy (20 days or more)

Reportable Places: Hotels

• • Crimes that occur in that controlled or frequently used hotel/hostel are reportable as non campus crimes: – Student’s rooms; – Entrance and egress, lobby, elevator, escalator, stairwell – Public areas (breakfast, pool, gym) Not reportable: – Crimes that occur in non student private rooms – Crimes that occur on floors not inhabited by students – Crimes that occur in places not accessible to students (VIP lounge)

Non-Campus Overseas

Important Non-Campus Distinction: • No public property reporting for Non-Campus Property.

• Only count crimes that occur on the dates and times that your institution owns or controls the location (this is very important).

Not Reportable

• • • • Crimes that occur on student-organized or private trips.

Crimes that occur on college-sponsored field trips.

Crimes that occur on overnight stays or short stays (assumes no long-term relationship with vendor).

Crimes that occur in adjacent property

Not Reportable

Staying with a Host Family: From the Handbook Page 30: Host family situations do not normally qualify as noncampus locations unless your written agreement with the family gives your school some significant control over space in the family home.

Clery on Tour

• • • Statistics that count Clery reportable crimes and certain referrals.

Crimes – – Federal (UCR/NIBRS) definitions Hierarchy rule applies (with exceptions) Referrals for drugs/weapons/alcohol – Local jurisdiction definitions – Has to be a crime (not just a violation of institutional policy) • 19 year old alcohol violation in London • • Marijuana violation in Amsterdam Possession of a handgun in a country that allows handguns Clery Act sets a floor, not a ceiling, – you may report more crimes or incidents than those required – per new Handbook, these must be reported separately.

Clery on Tour

• • We learn of Clery reportable crimes in two ways: Campus Security Authorities – Faculty/staff with significant responsibility for students and campus activities (includes pretty much anyone traveling with students overseas) – Individuals specified as those to whom students and employees should report crimes – Statistics provided by local law enforcement Send requests for crime statistics to local law enforcement • Specify what constitutes public and campus property (if applicable) for Clery Act reporting purposes • State that the information is required by the Clery Act for disclosure in the ASR and to the DoE.

• • • Keep a copy of the request for required Clery Act statistics Document any response or non-response from local law enforcement Good faith means not waiting until the last minute.

Additional Considerations

• • • •

Missing Persons Sex-Crime Information Records Retention Timely Warnings and Notifications

Example

Student is robbed at an Occupy protest outside of Harrods while on spring break in London, sees the college president, punches her, then lights a fire with old issues of the

News of the World.

NOT Clery reportable

Example

Student is robbed in the elevator of a hotel that the college rents a floor from for a week each semester. IS Clery reportable

TIX & ISSS

"OCR recommends that a school take steps to ensure that its employees who work with international students, including the school’s DSO, are trained on the school’s sexual violence policies and that employees involved in handling sexual violence complaints and counseling students who have experienced sexual violence are aware of the special issues that international students may encounter."

TIX Abroad

• • Title IX Coordinators should consider all incidents and allegations, including those that occur overseas, consistent with their responsibilities to spot patterns and track complaints Students participating in study abroad through a Host or Provider are subject to the policies and procedures of the Provider or Host, as well as those of his or her Home Institution.

TIX Abroad

• • Which institution takes the lead in investigating and responding to allegations of sexual harassment and/or violence shall be determined immediately following the reporting of an incident. Factors to consider include: – the location of the incident; – the enrollment status of the student(s) involved; – the nature and duration of the program; – the timing of the report (during or after a program).

Generally, the institution with immediate and primary control over the parties and evidence shall lead the investigation and response.

Example

• • • Student from your college who is in summer program at University of Florence alleges sexual assault by a student from college in neighboring state who is in the same program. She calls the faculty member at U Florence who coordinates the program with your College to report the incident. What happens next? Who is involved?

What options are available for victim?

TIX Abroad

• • – Planning and speed are key Sadly, this will happen to you Be ready to offer: • • • Counseling Options Legal assistance • Be ready to perform an investigation • • – Be ready to conduct a hearing Have distance-capability and educated staff on site Prepare and educate partners – Reach out to US counterparts immediately

The Code of Conduct Goes Global

• • • • • What parts of your code apply?

TIX yes What does the provision/prohibition say?

– Is it limited to on campus or applied anywhere?

Add local law Does campus' law travel?

– – Drinking age?

Marijuana?

Specific cultural or safety considerations?

– Look at specific trip and history

An American Code in Paris

• • • Conduct: Notice of charges – Time to prepare – Doesn't limit interim safety precautions Opportunity to be heard – Usually a hearing (look at code) – Consider distance options • Add provisions to compliment process Expulsion is student's expense

An American Code in Paris

• Conduct (cont.): Appeal – Good idea to have opportunity to correct deficiencies • Academic: Retain full discretion – Usually some appeal or review process Trip Leader Training is Essential – Give authority to act

Forum Standards

• Standard 8: The Organization has established and continuously maintains effective health, safety, security and risk management policies, procedures and faculty / staff training.

–The Forum on Education Abroad 2011 http://www.forumea.org/standards-standards.cfm

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Program Leader Qualifications

• Proposal Process • Orientation/Training • Student/Staff Ratios – Never one lone leader!

Essential Functions

• • • • • • Attendance at mandatory pre-departure meetings; 24-7 availability for the term of the program (the details of this differ by program but student emergencies rarely happen during the business days); Ability to manage the teaching requirements for the course in addition to the student service requirements; Maintain contact with the education abroad office/sponsor unit throughout the program; Report all behavior and health/safety incidents to the education abroad office/sponsor unit and consult on required response; Participate fully in all aspects of the program.

Program Leader Training

• • Why?

– Student Risk – Institutional Liability – Leader Risk Institutional/Leader – Contractual, tort and federal statutory liability – Institutional indemnity/insurance for those that follow process/policy and consult widely – Foreign laws

Case: Sexual Harassment

King v. Bd of Control of E. Michigan Univ • Female students alleged sexual harassment by two male students and a program assistant.

• The faculty leader chastised the students after the issue was reported to the home campus.

• The institution was found in violation of Title IX due to lack of appropriate response & fined.

Leader Training (cont.)

• • • It is a constant process!

– Consider multiple workshops/meetings – Draw on past leader experiences – Build a cohort – Training vs. professional development Mandatory? If yes, how enforced?

Private Companions?

– Allowed?

– What training/credentials?

Leader Training (cont.)

• University policies – Privacy (FERPA, HIPAA) – Sexual harassment (Title IX, Campus SaVE, Clery) – Health, disabilities (ADA) – Staff and faculty code/job description – Education abroad – Academic – Student behavior code – Driving/transportation

Leader Training (cont.)

• • Today’s student and responding to common issues – Mental health – Drinking Division of duties – Program leader – Local support – Home university • • Emergency response plan – Communication – Meeting place – Location specific Incident response – Reporting and 24-7 contacts – Using insurance – Scare stories/case studies

March 11, 2011

A megathrust earthquake, one of the five largest ever recorded, occurs off the Oshika Peninsula in Japan. It was followed by a tsunami with waves of up to 10 m (33 ft). Thousands are dead and there is extensive material damage to buildings and infrastructure, leading to significant accidents at four major nuclear power stations, including one at Fukushima in Tohoku. 2,654 people are missing.

Woodwho, woodwhere?

• On part of its Asian tour, your university's woodwind ensemble arrived in nearby Miyagi two days before. • • Ms. Phrantic calls and asks if her little Jimmy is alright.

How do you answer?

Emergency Planning

• • • Have an Emergency Team at home • Includes: Counsel, Risk, International, Student Services, External Relations, Public Safety, Health Services, etc.

• Has authority to take action • 24/7 availability Consider State Department warnings In-country contacts?

– Partners, friends, authorities • Including local authorities, insurance carriers, and consulate/embassy • Make sure that these are available to someone at home

Emergency Planning

• Require an Emergency Plan – Lists country-specific risks and steps taken to mitigate or planned as response – Defines emergency and/or levels • Includes student conduct and criminal activity • Includes sexual assault response plan – Automatic emergency contacts – Consider loss of leaders – Repatriation plan

In the Middle of the Night

It's the 8 th day of a three week study trip in Thailand and Sally gets a fever. The group is led by Professor Wrisk and includes 14 other students. Wrisk calls campus to seek advice, but gets no response because it's in the middle of the night EST. The local clinic seems clean and safe, so Wrisk and the group go on to the next stop and leave Sally. Sally speaks no Thai.

• • Not having heard from Sally in two days, her mom calls.

What information does your college have for her?

• When Prof. Wrisk finally contacts the campus, who does what?

Health Risk Planning

• • • • • • Require student orientation Require leader orientation Require waivers and agreements – General and activity specific – Gives decision-making authority to leaders Consider health forms – Doc approval?

Require immunizations – Country specific Insurance – Health and repatriation

Health Planning (ADA)

• • • • Just assume ADA applies in all of your programs, at home and abroad – More complicated with foreign partner programs – Consider addressing in agreements Prepare to provide disability accommodations – Think creatively about alternatives – Use resources from home where possible – This will not be low-cost Seek information AFTER admission to program but BEFORE trip leaves Make sure students and their providers understand the complications and difficulties of international travel

Policy Basics

•

Focus on addressing four main sources of risk

–

Disaster preparedness

–

Health Issues

–

Compliance

–

Business

Policy Basics

• • Use students and/or funding as the hook – Hard to argue institution's role in managing these – Some controls already in place • Access to funds • Registration – Consider how to tie in research and experiential travel • Indemnity?

Make all travel contingent on PLANNING

Policy Basics

• • • Designate a responsible office – International Programs offices have the expertise but often lack the initiative for faculty-led programs • Give them an ownership interest?

– Consider adding a position Offer support to trip leaders – Not just requirements, but help – Will have more juice if backed by policy Consider retaining experts – Business and compliance needs are different everywhere

General Preparation/Planning

By policy make approval contingent on: – Stated goals • Related to institutional mission?

• Consider student readiness – Resources – Travel/Accommodations • Clear itinerary and contacts – Adequate number/Expertise of leaders

General Preparation/Planning

By policy, make approval contingent on: – Orientation/Training • Much more to come – Communications • What devices and who to contact – Emergency Plan • More to come – Insurance

Policies you need

• • No money spent overseas without approval – Centralize all international outflows • Tie planning/approval to reimbursement Have procurements and contract authority sit outside of academic or research area – Require justification – Require legal review

Bonus Risk To Address In Policy: Travel

• • • Road crashes are the leading cause of death and injury for healthy Americans traveling abroad Policy should require preparation for road safety situations in any country or regions where university-sponsored groups will be driving Allow employees to drive?

NEVER

Bonus Risk: Travel

Association for Safe International Road Travel (ASIRT) publishes in–depth Road Travel Reports about the world’s roads for over 160 countries

Bonus Risk: Travel

- Country-Specific Information • • • • • • • Driver behaviors Signage Laws and customs Public transportation Taxis and buses Night travel Holiday travel • • • • • • • Pedestrian safety Weather hazards Extreme terrains Dangerous roads Police enforcement Emergency care Post-crash procedures

Discuss?