virginia’s higher education quarterly webcast series · 11 virginia’s 2015 campus sexual...

new legislation and legal issues impacting Virginia

colleges and universities

May 15, 2015 10:00 AM – 11:00 AM

Virginia’s Higher Education

Quarterly Webcast Series

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Welcome & Introductions

Charles L. Cabell Partner & Chair Real Estate Section Education Practice Williams Mullen [email protected] 804.420.6421

Daniel P. Watkins Associate Litigation Section Education Practice Williams Mullen [email protected] 804.420.6045

J. Nelson Wilkinson Partner Labor & Employment Section Education Practice Williams Mullen [email protected] 804.420.6591

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TODAY’S AGENDA

> Legal Analysis of Campus Sexual Assault Briefing

– Presented by Nelson Wilkinson

> Best Practices: Adjudicating Student Misconduct at Colleges & Universities

– Presented by Daniel Watkins

> Q&A’s

– Submit your questions using the chat feature found on the left side of your screen

Legal Analysis Campus Sexual Assault Briefing

Presented by: J. Nelson Wilkinson Date: May 15, 2015

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Virginia’s 2015 Campus Sexual Assault Bills

What is required of schools?

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>HB 1930(SB 712) – Reporting Sexual Violence

>SB 1193 – Recording Sexual-Violence Discipline in Student Records

>HB 1785 – Campus Police Reporting

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HB 1930

School must:

> ensure that certain employees report sexual assaults “as soon as practicable” to their Title IX Coordinator (“TNC”),

> form a “Review Committee,”

> ensure Review Committee meets within 72 hours of receipt of information,

> “immediately” make a report to police in certain emergency situations and notify victim,

> ensure appropriate committee member makes a report to Commonwealth Attorney within “24 hours” of learning of alleged felony sexual assault,

> establish MOU with local sexual assault crisis center,

> adopt policies for providing specific information to victims regarding sexual assault crisis centers; and

> review and certify sexual violence policies annually.

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SB 1193 School must:

> ensure that the registrar note sexual assault violations on student transcripts,

> ensure notations re suspensions are removed when suspension ends.

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HB 1785 School must:

> amend (or enter into) MOUs with law enforcement/campus police requiring them to report felony sexual assaults to the Commonwealth Attorney within 48 hours of beginning an investigation.

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HB 1930(SB 712)

Step 1 – Employee reports to TNC.

“Any responsible employee who in the course of his employment obtains

information that an act of sexual violence may have been committed against a

student attending the institution or may have occurred on campus, in or on a

non-campus building or property, or on public property shall report such

information to the Title IX coordinator as soon as practicable after addressing the

immediate needs of the victim.”

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“Responsible Employee”

“a person employed by a public institution of higher education or private nonprofit

institution of higher education who has the authority to take action to redress

sexual violence, who has been given the duty of reporting acts of sexual

violence or any other misconduct by students to the Title IX coordinator or other

appropriate institution designee, or whom a student could reasonably believe

has this authority or duty.”

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“in the course of his employment”

> “Any responsible employee who in the course of his employment obtains

information that an act of sexual violence may have been committed against a

student attending the institution or may have occurred on campus, in or on a

noncampus building or property, or on public property shall report such

information to the Title IX coordinator as soon as practicable after addressing the

immediate needs of the victim.”

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“Responsible Employee” Exceptions

Subsection I: Even “Responsible Employee” need not make report to TNC if:

> the RE is the victim.

> the information was obtained through any communication considered privileged

under state or federal law.

> information was obtained through the course of providing services as a licensed

health care professional, or an employee providing administrative support for

such health care professionals,

> “RE” is a professional counselor, an accredited rape crisis or domestic violence

counselor, a campus victim support personnel,

> a member of clergy, or

> an attorney.

> has “actual knowledge” that it has already been reported.

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“... obtains information that an act of sexual violence may have been

committed...”

What is “sexual violence”?

“physical sexual acts perpetrated against a person's will or where a person

is incapable of giving consent.”

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What crimes of sexual violence must be reported?

Against Whom or Where?

“...an act of sexual violence may have been committed against a

student attending the institution or may have occurred on

campus, in or on a non-campus building or property, or on public

property...”

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"Campus" =

“(i) any building or property owned or controlled by an institution...

within the same reasonably contiguous geographic area of the

institution and used by the institution in direct support of, or in a

manner related to, the institution's educational purposes,

including residence halls,

(ii) any building or property that is within or reasonably contiguous to

the area described [above] that is owned by the institution but

controlled by another person, is frequently used by students, and

supports institutional purposes, such as a food or other retail

vendor.”

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"Non-campus building or property"

(i) any building or property owned or controlled by a student

organization officially recognized by an institution of higher

education or

(ii) any building or property owned or controlled by an

institution of higher education that is used in direct support of,

or in relation to, the institution's educational purposes, is

frequently used by students, and is not within the same

reasonably contiguous geographic area of the institution.

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"Public property"

> all public property, including thoroughfares, streets,

sidewalks, and parking facilities, that is within the campus,

or immediately adjacent to and accessible from the campus.

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Responsible employee’s report goes

“...to the Title IX coordinator...”

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“Any responsible employee who in the course of his employment obtains

information that an act of sexual violence may have been committed

against a student attending the institution or may have occurred on

campus, in or on a noncampus building or property, or on public property

shall report such information to the Title IX coordinator as soon as

practicable after addressing the immediate needs of the victim.”

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Step 2 – TNC reports to “Review Committee”

> “C. Upon receipt of information pursuant to subsection B, the

Title IX coordinator or his designee shall promptly report the

information, including any personally identifiable

information, to a review committee established pursuant to

subsection D. Nothing in this section shall prevent the Title IX

coordinator or any other responsible employee from

providing any information to law enforcement with the

consent of the victim.”

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Forming a “Review Committee”

> “D. Each [institution] shall establish a review committee for

the purposes of reviewing information related to acts of

sexual violence, including information reported pursuant to

subsection C.”

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Who makes up the “Review Committee” ?

“Three or more persons”

> Title IX Coordinator (or designee)

> Representative of Law Enforcement

– i.e., “representative of campus security”

> “Student affairs representative”

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Investigative/Discovery Authority

> “...The review committee may obtain law-enforcement records, criminal

history record information as provided in §§ 19.2-389 and 19.2-389.1,

health records as provided in § 32.1-127.1:03, available institutional

conduct or personnel records, and known facts and circumstances of

the information reported pursuant to subsection C or information or

evidence known to the institution or to law enforcement. ... The review

committee shall conduct its review in compliance with federal privacy

law.”

http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+19.2-389



http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+19.2-389.1



http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+32.1-127.1C03



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HB 1930 - Continued

STEP 3: Review Committee convenes

> E. Upon receipt of information of an alleged act of sexual violence

reported pursuant to subsection C, the review committee shall meet

within 72 hours to review the information and shall meet again as

necessary as new information becomes available.

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HB 1930 - Continued School must “immediately” report to police in emergency situations and notify victim

> “ If, based on consideration of all factors, the review committee, or if the

committee cannot reach a consensus, the representative of law

enforcement on the review committee, determines that the disclosure of

the information, including personally identifiable information, is

necessary to protect the health or safety of the student or other

individuals as set forth in 34 C.F.R. § 99.36, the representative of law

enforcement on the review committee shall immediately disclose such

information to the law-enforcement agency that would be responsible for

investigating the alleged act of sexual violence.

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Such disclosure shall be for the purposes of investigation and other actions

by law enforcement. Upon such disclosure, the Title IX coordinator or his

designee shall notify the victim that such disclosure is being made. The

provisions of this subsection shall not apply if the law-enforcement agency

responsible for investigating the alleged act of sexual violence is located

outside the United States.

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HB 1930 - Continued

Felony Assaults

Subsection G: Committee member or law enforcement

representative must report to Commonwealth Attorney “or

other prosecutor” within “24 hours” if act constitutes “felony

sexual assault.”

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HB 1930 - Continued

Further Investigation

> “H. At the conclusion of the review, the Title IX coordinator and the law-

enforcement representative shall each retain (i) the authority to

proceed with any further investigation or adjudication allowed under

state or federal law and (ii) independent records of the review team's

considerations, which shall be maintained under applicable state and

federal law.”

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HB 1930 - Continued

School must establish MOU with

local sexual assault crisis center

> Each [institution] shall establish ... a written memorandum of

understanding with a sexual assault crisis center or other victim support

service in order to provide sexual assault victims with immediate access

to a confidential, independent advocate who can provide a trauma-

informed response that includes an explanation of options for moving

forward.

> Each [institution] shall adopt policies to provide to sexual assault victims

information on contacting such sexual assault crisis center or other victim

support service.

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HB 1930/SB 712 School must adopt policies for providing specific

information to victims regarding sexual assault crisis centers

Victims must be informed of:

> “(i) the available law-enforcement options for investigation and prosecution;

> (ii) the importance of collection and preservation of evidence;

> (iii) the available options for a protective order;

> (iv) the available campus options for investigation and adjudication under the

institution's policies;

> (v) the victim's rights to participate or decline to participate in any investigation to the

extent permitted under state or federal law;

> (vi) the applicable federal or state confidentiality provisions that govern information

provided by a victim;

> (vii) the available on-campus resources and any unaffiliated community resources,

including sexual assault crisis centers, domestic violence crisis centers, or other victim

support services; and

> (viii) the importance of seeking appropriate medical attention.”

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HB 1930 - Continued

Schools must review and certify sexual

violence policies annually

> By October 31 of each year, each [institution] shall certify to the State

Council of Higher Education for Virginia that it has reviewed its sexual

violence policy and updated it as appropriate.

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SB 1193

School must:

> 1. ensure that its registrar notes sexual violence discipline on transcript, and

> 2. remove those notations after suspension

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SB 1193

Who is responsible?

> “Registrar” - or the other employee, office, or department of

the institution that is responsible for maintaining student

academic records

IF school is “eligible to participate in the Tuition Assistance Grant Program or to receive

project financing from the Virginia College Building Authority pursuant to the

Educational Facilities Authority Act of 1972”

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SB 1193

What must be noted?

> When the student had been “suspended for, has been permanently

dismissed for, or withdraws from the institution while under

investigation for an offense involving sexual violence”

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SB 1193

How must it be noted?

“...a prominent notation on the academic transcript... stating that such

student was suspended for, was permanently dismissed for, or withdrew

from the institution while under investigation for an offense involving sexual

violence”

Provides Example:

Such notation shall be substantially in the following form:

> "[Suspended, Dismissed, or Withdrew while under investigation] for a

violation of [insert name of institution's code, rules, or set of standards]."

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SB 1193

Notification of disciplinee:

> Each such institution shall (a) notify each student that any

such suspension, permanent dismissal, or withdrawal will be

documented on the student's academic transcript

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SB 1193

When can the notation be removed?

School must:

> (b) adopt a procedure for removing such notation from the academic

transcript of any student who is subsequently found not to have

committed an offense involving sexual violence under the institution's

code, rules, or set of standards governing student conduct.

> The institution shall remove [the notion indicating a suspension if] (i)

completed the term of the suspension and any conditions thereof and (ii)

has been determined by the institution to be in good standing according

to the institution's code, rules, or set of standards governing such a

determination.

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SB 1193

> C. The provisions of this section shall apply only to a student

who is taking or has taken a course at a campus of a public

or private institution of higher education located in the

Commonwealth; however, the provisions of this section shall

not apply to any public institution of higher education

established pursuant to Chapter 10 (§ 23-92 et seq.).

http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+23-92



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HB 1785

School must:

> 1. amend (or enter into) MOUs with law enforcement requiring campus police to report “felony sexual assaults” to the Commonwealth Attorney within 48 hours of “beginning investigation.”

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HB 1785 Institutions with campus police forces must ensure their mutual aid

agreements with the police (or “MOU”) require reporting

“include provisions requiring either the campus police force ..., in the event

that such police force or agency conducts an investigation that involves a

felony criminal sexual assault ...occurring on campus, in or on a non-

campus building or property, or on public property, to notify the local

attorney for the Commonwealth of such investigation within 48 hours of

beginning such investigation. Such notification shall not require a campus

police force or the agency with which it has established a mutual aid

agreement to disclose identifying information about the victim.”

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EXAMPLE 1:

A student casually tells her RA that a homeless man exposed himself to her, from about 6 feet away, when she was smoking a cigarette outside of an off-campus restaurant. The RA asks if he can report the incident to the TNC and the victim says no, she would rather be done with the whole thing and not escalate it any further.

– Must the RA report to the TNC?

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EXAMPLE 2:

A student from ABC college calls the Dean of the Faculty at DEF college and says that, while at an ABC college fraternity party, a DEF college student sexually assaulted an ABC college freshman who had passed out.

– Does the DEF College Dean need to report to he incident to DEF College’s TNC?

– To ABC’s colleges TNC?

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EXAMPLE 3:

> A certain school’s Review Committee reports to the Registrar that

Student John Doe, who is currently being investigated for a sexual

assault, has been permanently dismissed for an honor code violation.

– Does the law require the registrar to make a notation regarding the

sexual assault on the Student’s transcript?

– Should the school continue with an adjudication of John Doe? If it

does, and convicts him, should the Registrar note the sexual assault

conviction on his transcript?

BEST PRACTICES: ADJUDICATING STUDENT MISCONDUCT AT COLLEGES & UNIVERSITIES

Presented by: Daniel P. Watkins Date: May 15, 2015

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NO CONSTITUTIONAL RIGHT TO HIGHER EDUCATION

1. The Supreme Court has not ruled that college attendance is a right.

BUT 2. Due process is required prior to substantial sanctions based on student conduct.

– Goss v. Lopez (1975)

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CONSTITUTIONAL PROTECTIONS:

> 14th Amendment Requires

– “minimum threshold of procedural due process”

1. Adequate notice

2. A hearing that comports with “fundamental principles of fairness”

– Dixon v. Alabama (5th Cir. 1961)

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“ADEQUATE NOTICE”

> Notice is designed to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

> The accused must be informed of the pending deprivation of her interests so she can determine what steps are prudent to protect said interests.

> Significant advance notice is likely not required.

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BEST PRACTICES FOR PROVIDING NOTICE:

1. Always provide the accused with a written description of the conduct violation (time, date, and nature of the offense), possible sanctions, and procedures for adjudication.

2. As the gravity of the offense increases, so should the amount of time provided to the accused to prepare a defense.

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CASE STUDY # 1

> Jimmy Choo is a student at State University. He was accused of stealing shoe designs from his roommate, Steve Madden, for a fashion class mid-term. 2 hours prior to the adjudicatory hearing, State University notified Mr. Choo of the allegations against him, the range of possible sanctions, and his appeal rights.

– Is this Constitutionally Permissible?

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“FUNDAMENTAL FAIRNESS”

> Courts have crafted a sliding scale to determine the level of protections that a hearing must provide.

– When expulsion is contemplated, the demands of due process are greater than when a less significant form of discipline is at stake.

> There is no right to cross-examine witnesses in cases involving minor sanctions.

> Processes should be fundamentally fair to both the accused and the complainant.

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BEST PRACTICES FOR FAIR HEARINGS:

1. Misconduct hearings should lack the formality of criminal proceedings.

2. Allow legal counsel but limit the involvement of professional advocates.

3. Relax formal evidentiary rules.

4. Develop and comply with written procedures.

5. Record proceedings.

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CASE STUDY # 2

> Geraldo Rivera is a graduate student at Institute College University. After his test scores dramatically increased, his Spanish professor suspected that he had been cheating. Based on the university’s handbook, Mr. Rivera was presumed guilty and was subsequently found responsible for cheating and suspended for five days. On appeal, the review board upheld the decision. Mr. Rivera was not permitted to be present at the appeal hearing.

– Is this legally permissible?

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TAKEAWAYS

> The existing legal framework provides minimal protection for accused students.

> There is no one-size-fits-all resolution method. Institutions have flexibility to determine the right process that matches their own goals, cultures, and resources.

> Do not attempt to create a mini-courtroom. Offer prompt resolution (generally 60 days). Hearings should be structured to get to the truth of the matter.

> Be intentional during the development of student conduct policies and adjudicative procedures. Since the constitutional protections are minimal, student handbooks provide a contract right for students—accusers and the accused.

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QUESTIONS?

Charles L. Cabell Partner & Chair Real Estate Section Education Practice Williams Mullen [email protected] 804.420.6421

Daniel P. Watkins Associate Litigation Section Education Practice Williams Mullen [email protected] 804.420.6045

J. Nelson Wilkinson Partner Labor & Employment Section Education Practice Williams Mullen [email protected] 804.420.6591

More Risks & Legal Issues for Private K12 and Colleges & Universities

September 30, 2015 @ 5:30 PM Reception at Bistro Bobette, Richmond

October 1, 2015 8:00 @ 8:00 AM – 2:00 PM Seminar at the Williams Mullen Center

Second Annual Education Seminar

Next Virginia’s Higher Education Quarterly Webcast Series

September 21, 2015 @ 2:00 PM Presented by Marsh

virginia’s higher education quarterly webcast series · 11 virginia’s 2015 campus sexual...

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