Navigating theLegislative Minefield
Agenda    • Introduction    • Legislative Review    • The Intersections    • Avoiding the Minefields© Margolis Healy & Ass...
Where are the Mines?  • Title IX is not the only Federal law that imposes    obligations re: sexual violence     • Clery A...
Clery Act Basic                                                   Requirements  • Policy disclosure – provide accurate sta...
Direct Implications   • Definitions of Sex Offenses (forcible & non-     forcible)   • Campus Sexual Assault Victims Bill ...
Definitions of Sex Offenses  • Uses the FBI’s National Incident-Based    Reporting System (NIBRS) edition of the UCR    ha...
Definitions of Sex Offenses      • Sex Offenses – Forcible        - Forcible Rape        - Forcible Sodomy        - Sexual...
Sex Offense Policy &                 Procedures• Must have a statement in your ASR about the      institution’s sex offens...
Sex Offense Policy &                                             Procedures• This statement must include:    -      Educat...
Sex Offense Policy &                                              Procedures  • When a sex offense occurs     -       Who ...
Sex Offense Policy &                                              Procedures   • Notification of on/off campus services   ...
Sex Offense Policy &                                             Procedures   • Campus disciplinary procedures must provid...
CSCPA of 2000     • Simply required to inform     • Not required to disseminate     • Disclosure must be made in the      ...
Indirect Implications    • Understanding Campus Security Authorities         -      Campus police/security department     ...
Indirect Implications         Campus Security Authority’s Responsibility:                      “to report allegations made...
When is a Crime Considered                                         “Reported?”        “A crime is reported when it is brou...
Timely Warning Notices• An institution must alert the campus community of  certain crimes in a manner that is timely and w...
Daily Crime Log   • Any institution that has a campus police     department or security office must create,     maintain a...
Voluntary, Confidential                                                 Reporting  • 2 Requirements:       - A list of tit...
Voluntary, Confidential                                                 Reporting  • Don’t confuse voluntary, confidential...
Voluntary, Confidential                                                 Reporting  • Significant implications for Title IX...
Voluntary, Confidential                                                 Reporting   • Describes procedures, if any, that e...
Indirect Implications    • ASR Current Policies Regarding Campus Law      Enforcement:         - The working relationship ...
Indirect Implications    • Implications for Title IX SA Investigations         -      Any agreement or Memorandum of Under...
FERPA Fundamentals     • Unless an exception applies, FERPA prohibits       nonconsensual disclosure of information from  ...
Pertinent FERPA Exceptions • Law enforcement unit records:      - Records created by security department/campus police    ...
Pertinent FERPA Exceptions     • Disclosure to other institutions where the       student seeks or intends to enroll      ...
Pertinent FERPA Exceptions    • Disclosure to a victim of an alleged perpetrator      of a crime of violence or a non-forc...
Pertinent FERPA Exceptions     • Disclosure (to anyone, not just the victim) of the final       results of a disciplinary ...
FERPA/Title IX Interaction     • Per OCR, FERPA permits disclosure to       victims of sexual assault AND sexual       har...
FERPA/Clery Interaction   • Compliance with Clery requirements (e.g., must     inform accuser of outcome of proceeding    ...
Practical Tips re Minefield     • Recognize FERPA context     • Recognize and utilize all FERPA exceptions     • Recognize...
HIPAA     • HIPAA usually applies, for practical purposes,       only where institution engages in certain       “covered ...
HIPAA     • If HIPAA does apply to your institution generally:        -       HIPAA does not apply to “student treatment r...
Campus SaVE Act     • Will, in general, require institutions to report and       do more regarding gender and sexual viole...
Conclusion      • Significant overlap between Clery, FERPA, and        Title IX      • You can avoid the minefields       ...
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Legislative Minefield HBCU 2012

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An introduction and review of the direct and indirect implications of the intersection of various federal campus safety compliance laws.

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Legislative Minefield HBCU 2012

  1. 1. Navigating theLegislative Minefield
  2. 2. Agenda • Introduction • Legislative Review • The Intersections • Avoiding the Minefields© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 2
  3. 3. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 3
  4. 4. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 4
  5. 5. 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)© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 5
  6. 6. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 6
  7. 7. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 7
  8. 8. 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”© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 8
  9. 9. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 9
  10. 10. Sex Offense Policy & 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 10
  11. 11. Sex Offense Policy & 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 11
  12. 12. Sex Offense Policy & 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 12
  13. 13. CSCPA of 2000 • Simply required to inform • Not required to disseminate • Disclosure must be made in the Annual Security Report© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 13
  14. 14. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 14
  15. 15. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 15
  16. 16. 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 16
  17. 17. 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 17
  18. 18. 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 18
  19. 19. 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC
  20. 20. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 20
  21. 21. Voluntary, Confidential 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 21
  22. 22. Voluntary, Confidential 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 22
  23. 23. Indirect Implications • 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 23
  24. 24. Indirect Implications • 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.© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 24
  25. 25. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 25
  26. 26. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 26
  27. 27. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 27
  28. 28. Pertinent FERPA Exceptions • 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 28
  29. 29. Pertinent FERPA Exceptions • 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 29
  30. 30. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 30
  31. 31. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 31
  32. 32. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 32
  33. 33. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 33
  34. 34. 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)© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 34
  35. 35. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 35
  36. 36. 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© Margolis Healy & Associates, LLC; Dinse Knapp & McAndrew, PC 36

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