Legislative Minefield HBCU 2012

Navigating the
Legislative Minefield

Agenda

• Introduction
• Legislative Review
• The Intersections
• Avoiding the Minefields

© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC
2

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

3

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

4

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)

5

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

6

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
7

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”
8

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

9

Procedures
• 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

10

Procedures

• 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

11

Procedures
• 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

12

CSCPA of 2000

• Simply required to inform
• Not required to disseminate
• Disclosure must be made in the
Annual Security Report

13

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

14


Campus Security Authority’s Responsibility:
“to report allegations made in good faith
to the reporting structure established
by the institution.”

• Significant Title IX implications

15

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.

16

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.

17

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.

18

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.


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
20

Reporting

• 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

21

Reporting

• 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.

22


• 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.

23


• 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.

24

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

25

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
26


• 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

27

• 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
28


• 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
29

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

30

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

31

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

32

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

33

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)
34

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

35

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

36

Legislative Minefield HBCU 2012

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