Legislative Minefield HBCU 2012

Navigating the Legislative Minefield

© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC

Agenda

• Introduction

• Legislative Review

• The Intersections

• Avoiding the Minefields

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Where are the Mines?

• Title IX is not the only Federal law that imposes obligations re: sexual violence

• Clery Act directly imposes requirements for response and prevention efforts

- There are also indirect implications

• FERPA may also impact your actions

• Campus SaVE Act on the horizon

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Clery Act Basic Requirements

• Policy disclosure – provide accurate statements of current security policies and practices

• Records collection and retention – maintain certain records and request records from local law enforcement agencies

• Information dissemination – provide campus community with information and disseminate that information in several ways

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Direct Implications

• Definitions of Sex Offenses (forcible & non-forcible)

• Campus Sexual Assault Victims Bill of Rights:

- Sexual offense awareness programs

- Procedures following a report of a sexual assault

• Campus Sex Crimes Prevention Act (2000)

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Definitions of Sex Offenses

• Uses the FBI’s National Incident-Based Reporting System (NIBRS) edition of the UCR handbook to define sexual offenses

• Implications for Title IX SA Investigations

- Institutional policy violations definitions may differ significantly

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Definitions of Sex Offenses

• Sex Offenses – Forcible- Forcible Rape- Forcible Sodomy- Sexual Assault With An Object- Forcible Fondling

• Sex Offenses – Non-forcible- Incest- Statutory Rape

• Remember – these are CRIME definitions

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Sex Offense Policy & Procedures• Must have a statement in your ASR about the

institution’s sex offense policy, procedures and programs.

- “A statement of policy regarding the institution’s campus sexual assault programs to prevent sex offenses, and procedures to follow when a sex offense occurs.”

• Similar to the OCR Title IX DCL “Steps to Prevent Sexual Harassment and Sexual Violence and Correct its Discriminatory Effects on the Complainant and Others” and “Remedies and Enforcement”

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Sex Offense Policy & Procedures

• This statement must include:- Educational programs that promote awareness

of:

Rape

Acquaintance rape

Other forcible and non-forcible sex offenses

• You should interpret this to mean that you SHOULD have such programs

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• When a sex offense occurs

- Who to contact

- Preserving evidence

- Whom to report alleged offense

• Option to notify law enforcement

- On-campus and local police

- Statement that institutional personnel will assist students in notifying authorities

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• Notification of on/off campus services

- Counseling and other mental health centers

- Rape/Sexual assault crisis centers

- On campus advocacy centers

• Change academic & living situation

- Provide options

- Must provide, if reasonably available

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• Campus disciplinary procedures must provide the accuser/accused:

- Right to have others present (attorney, advisor, witnesses);

- Right to be advised of final results - disclosure to accuser is UNCONDITIONAL;

- Sanctions that may be imposed

• Prompt and Equitable Requirements of OCR Title IX DCL

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CSCPA of 2000

• Simply required to inform

• Not required to disseminate

• Disclosure must be made in the Annual Security Report

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Indirect Implications• Understanding Campus Security

Authorities

- Campus police/security department

- Individuals responsible for security

- Access monitor

- Resident assistants

- Individual or offices designated to receive crime reports

- Officials with significant responsibility for student and campus activities

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Indirect Implications

Campus Security Authority’s Responsibility:

“to report allegations made in good faith to the reporting structure established

by the institution.”

• Significant Title IX implications

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When is a Crime Considered “Reported?”

“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.”

• An institution 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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Timely Warning Notices

• An institution must alert the campus community of certain crimes in a manner that is timely and will aid in the prevention of similar crimes. These include all Clery Act crimes that are:

- Reported to campus security authorities or local police agencies; and,

- Considered by the institution to represent a serious or continuing threat to students and employees.

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Daily Crime Log

• Any institution that has a campus police department or security office must create, maintain and make available a daily crime log.

- A crime is entered into the log when it is reported to the campus police or security department.

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Voluntary, Confidential Reporting

• 2 Requirements:

- A list of titles of each person or organization to whom students and employees should report criminal offenses for the purpose of making timely warning reports and the annual statistical disclosure.

Statement must also disclose whether the institution has any institutional policies or procedures that allow victims or witnesses to report crimes on a voluntary, confidential basis for inclusion in the annual security report.


Voluntary, Confidential Reporting• Don’t confuse voluntary, confidential

reporting with anonymous reporting…

- A confidential process allows one to come forth without the institution disclosing his/her identity.

- A “Jane or Jim Doe” report

• Significant implications for Title IX SA investigations

• May also impact whether or not the campus public safety entity is able to participate in the investigation

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• Significant implications for Title IX SA investigations

- Title IX requires institutions to “take immediate action to eliminate the harassment, prevent its recurrence, and address its effects”

• May also impact whether or not the campus public safety entity is able to participate in the investigation

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• Describes procedures, if any, that encourage pastoral counselors and professional counselors, if and when they deem it appropriate, to inform the persons they are counseling of any procedures to report crimes on a voluntary, confidential basis for inclusion in the annual disclosure of crime statistics.

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• ASR Current Policies Regarding Campus Law Enforcement:

- The working relationship of campus security personnel with state and local law enforcement agencies, including whether the institution has agreements with such agencies, such as written memoranda of understanding, for the investigation of alleged criminal offenses.

- Don’t have to include a copy of MOUs, simply state whether they exist.

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• Implications for Title IX SA Investigations

- Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably.

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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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• Disclosure to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense

- May only include the final results of the disciplinary proceeding conducted by the institution with respect to that alleged crime or offense.

- May disclose the final results of the disciplinary proceeding, regardless of whether the institution concludes a violation was committed

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• Disclosure (to anyone, not just the victim) of the final results of a disciplinary proceeding in which the student has been found responsible for violating institution’s rules in connection with a crime of violence or non-forcible sex offense

- May not disclose the name of any other student, including a victim or witness

• Under these exceptions, sexual assault (including where victim is incapable of giving consent) is “forcible sex offense” and a crime of violence

- Sexual harassment is not crime of violence

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FERPA/Title IX Interaction

• Per OCR, FERPA permits disclosure to victims of sexual assault AND sexual harassment of information about the sanction when the sanction relates directly to harassed student- Why? Because Title IX prevails in this

conflict, and harassed student needs to know, e.g., about no-contact orders, suspension of harassing student, transfer to other residence hall, classes, etc.

- Cannot disclose other information

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FERPA/Clery Interaction

• Compliance with Clery requirements (e.g., must inform accuser of outcome of proceeding alleging sex offense) does not violate FERPA

• Institutions cannot require accusers to adhere to nondisclosure agreements about this information

- FERPA re-disclosure limitations do not apply to information that must be disclosed under Clery

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Practical Tips re Minefield

• Recognize FERPA context

• Recognize and utilize all FERPA exceptions

• Recognize that Clery takes precedence if any conflict

• Seek consent/waivers if necessary

• Redact records if necessary to move forward with fair investigation, disciplinary proceedings

• Always put safety first

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HIPAA

• 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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Campus SaVE Act

• Will, in general, require institutions to report and do more regarding gender and sexual violence

- Adds “domestic & dating violence” (IPV) and stalking incidents to reportable crimes

- Expands/clarifies disciplinary procedures

- Adds policy statements re: IPV; expands policy statement re: Sexual Assault

- Adds education programs for IPV; expands programs for Sexual Assault

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Conclusion

• Significant overlap between Clery, FERPA, and Title IX

• You can avoid the minefields

- Acknowledge and understand them

- Collaboration and coordination across the institution is key

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Documents

Legislative Minefield HBCU 2012