Are You Prepared for the Rising Sexual Climate on Campus?

By:  Lara Nochomovitz
Jackson Kelly PLLC
Denver, Colorado

Sexual culture on college campuses is changing. Is your institution prepared?  In July 2013, the New York Times reported that  “… traditional dating in college has mostly gone the way of the landline, replaced by ‘hooking up’ — an ambiguous term that can signify anything from making out to oral sex to intercourse — without the emotional entanglement of a relationship.”  The shift away from traditional dating to a so-called “hook up culture” seems to have a darker side too, as evidenced by the exponentially growing number of investigations of sexual assault on college and university campuses in the United States.

Over the past year, numerous institutions of higher education, from North Carolina to California and states in between, have become the subjects of investigations by the U.S. Department of Justice (“DOJ”) for violating Title IX of the Education Amendment of 1972 (“Title IX”).

Title IX prohibits gender based discrimination, such as sexual harassment, sexual assault and rape, in education programs, including extracurricular and athletic programs.  Colleges and universities have an affirmative requirement to prohibit sexual harassment and sexual violence or risk facing litigation and civil liability, including attorney fees and costs, and the loss of federal funding.  Violations of Title IX may also subject a college or university to damages that are not quantitatively measurable, but harmful nonetheless, including bad press and being subject to investigation, scrutiny and equitable sanctions by the DOJ.

Until recently, a 2011 “Dear Colleague Letter” published by the United States Department of Education provided the preeminent guidance on compliance with Title IX as relates to sexual harassment and sexual violence.  As the sexual climate on college campuses becomes more heated, the standard for Title IX compliance may also be rising.

One piece of evidence in support of this notion is the June 2013 “Resolution Agreement” (“Agreement”) between the DOJ and the University of Montana– Missoula (“U of M”).

The DOJ initiated a Title IX investigation at U of M after at least 9 students reported sexual assault in 2011.  Though U of M had “appointed a Title IX Coordinator, adopted policies and procedures regarding sex-based harassment, responded to complaints, and developed and provided training to employees and students,” the DOJ still required the University to enter the Agreement.  Among other provisions, the Agreement requires U of M to revise its policies defining sexual harassment and sexual assault, as well as those relating to the reporting, investigation and resolution of such offenses.  The Agreement also requires U of M to develop and provide Title IX training to a broad spectrum of the University population, including all staff, faculty and resident assistants, before the end of 2013.  U of M must also develop and implement a system to track complaints of all sex-based harassment.

In response to inquiries, including one from the American Association of University Professors, the DOJ has affirmed that the Agreement did not broaden the definition of sexual harassment or require the implementation of specific course materials.  The DOJ also noted that the Resolution Agreement was a solution to a specific set of circumstances present at U of M.  Yet the DOJ has stated that the Agreement “will serve as a blueprint for colleges and universities throughout the country.”  In light of this statement and the apparent rise in Title IX complaints and investigations by the DOJ, how can other colleges and universities learn from U of M? Where did it go wrong?

One key problem is that U of M had not one but eight separate policies prohibiting sexual harassment and sexual assault.  The DOJ concluded that the policies were ineffective in part because they confused definitions of “sexual harassment” and “hostile environment” and did not provide a clear path for reporting discriminatory sexual conduct.

When analyzing your existing Title IX policies to identify similar problematic issues, ask yourself:

Do the policies provide a clear definition of what conduct is prohibited?

  • Would a student know how and to whom to make a complaint?
  • Is there any ambiguity regarding the investigation and resolution of a complaint?

Members of the Higher Education Council help colleges and universities analyze, revise and implement Title IX policies – and provide counsel and representation when clients become the subject of a Title IX investigation.

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Update: Union Organizing Efforts by NYU’s Graduate Students

By:  Euphemia “Phemie” Thomopolus
Hirschfeld Kraemer LLP
San Francisco, CA

As promised in our earlier post, we are keeping an eye on the NYU graduate student issue currently before the National Labor Relations Board.

On October 4, NYU offered a concession in its long-standing battle against graduate student unionization.  The university stated that it will not block an election to organize a teaching assistants union and agreed to negotiate with the union if one was created.  Graduate students’ reactions to NYU’s announcement were tepid at best.  The reason for their lackluster response is that NYU also reiterated that it will not accept unionization of its research assistants.  NYU stated that the reason it refuses to accept a research assistants union is because research assistants’ responsibilities are directly tied to their research and the pursuit of their degrees, making the relationship between research assistants and the university a purely academic one.

As a reminder, the NLRB has already addressed this issue.  In Brown University, 342 NLRB 483 (2004), the Board held that graduate student assistants are students with a predominantly academic relationship with their schools rather than employees, and therefore do not have the right to compel their employers to enter into collective bargaining.  Before the Brown decision, NYU was the only private university to negotiate a contract with a graduate student union, the Graduate Students Organizing Committee.  In the post-Brown era, things changed rapidly.  NYU refused to negotiate a new collective bargaining agreement with the GSOC and its graduate students and researchers petitioned the Board for an election to vote on union representation.

The Board invited comments on the issue last year.  Numerous educational organizations submitted amicus briefs urging the Board to uphold Brown, including our Higher Education Council of the Employment Law Alliance.  Click here to review the Higher Education Council’s amicus brief.

Given the response to NYU’s latest offer, it appears this issue will not be resolved at the negotiating table.  Stay tuned.