Topics in this Newsletter include:

1) Semester Update—Fall 2003
2) NCHERM 2003-2004 Seminar topics
3) Update on 2003-2004 NCHERM events and conference presentations
4) Details on the NCHERM “Special Counsel” program
5) A New NCHERM video is born
6) NCHERM Model Code of Conduct Now Available
7) Free Article: Legislation and Litigation Update for Student Affairs

Semester Update – Fall 2003

Wow. The halfway point in the semester is already here. It has been an intense start, and Brett Sokolow has visited thirty-six campuses since mid-August. A few thoughts on the semester so far: Whatever authors chronicling “The Millennials” claim to know about this generation of students, we remain skeptical. Millennials are supposed to be rule followers. Yet, many of you are seeing increases in student misconduct, and the start of the semester has been very intense for you, too. Why? It appears that Millennials are rule followers only to the extent that they understand and agree with the rules. That explains all the alcohol violations.

On a more encouraging note, it is gratifying to finally see what appears to be a tipping point in student attitudes about incapacitated sex. For the first time in seven years, most of the student audiences this semester are voting “guilty” in the case Brett Sokolow uses for the “Drunk Sex or Date Rape” program, by wide margins. This is unprecedented. Maybe they are finally getting the idea that having sex with someone who has had too much to drink is unacceptable. In other news, NCHERM has sponsored seven Judicial Decision-Maker Training Academies so far this semester, with one still to go. Representatives from over 300 colleges have attended. Many thanks to the Maryland College Personnel Association and to the various ASJA Circuits who supported and co-sponsored these events.

As with every issue of the NCHERM Newsletter, we have included a free article at the end. It is short, sweet and hopefully helpful. Please share it as you see fit. Also, keep us in mind as we head toward the spring 2004 semester. We are available to provide educational programming for your students on sexual assault, problem drinking and hazing. And, of course, we hope to be able to serve you this year with our array of consulting services, staff trainings, judicial trainings, and policy work.

A reporter asked Brett Sokolow recently to sum up what NCHERM is all about, and he answered by saying we provide “Best Practices for Student Health and Safety.” We liked that so much that we have incorporated it into the NCHERM logo as our official tag line. We hope you like it, too.

Update on 2003-2004 Seminar Topics

As we phase out of the early fall judicial trainings, we are preparing a series of regional seminars on critical topics for late fall and the spring 2004 semester. The seminar schedule will be posted to the NCHERM website shortly. The topics include:

1) Campus Sexual Misconduct and Problem Drinking: Best Practices for Policy, Procedures, Programming and Protocol. For two of these events, Brett Sokolow will be teaming-up with Dr. Alan Berkowitz for the facilitation, giving you an added thoughtful perspective.
2) Best Practices for Investigation of Student Conduct Violations. This seminar is the one not to miss if you can only get to one this spring.
3) Sexual Assault, Sexual Harassment and Title IX: Managing the Risk on Campus. This topic has been a favorite of attendees for the last three years, and continues by popular demand.
4) Best Practices for Risk Management in Student Affairs. This half-day seminar promises to provide key information to keep student affairs professionals ahead of the curve and one step ahead of the trial lawyers.

Update on 2003-2004 NCHERM Event/Conference Appearances by Brett Sokolow

October 30th, 2003. Campus Sexual Misconduct and Problem Drinking: Best Practices for Policy, Procedures, Programming and Protocol. Hosted at the
University of California, Irvine.

November 7th, 2003 NCHERM Judicial Decision-Maker Training Academy at Kenyon College, Gambier, OH.

November 14th, 2003 Maryland Coalition Against Sexual Assault Annual Conference at Towson University. Brett will be presenting “Drunk Sex or Date Rape: Can You Tell the Difference.”

November 16-18th California Law & Policy in Higher Education Institute. Brett will be presenting three topics:

1) The Standard of Proof in Date Rape and Sexual Assault Cases.
2) Strategies for Successful Investigation and Adjudication of Campus Conduct Violations
3) Deploying Risk Management Strategies Effectively Within Student Affairs

ASJA 2004 Brett will be presenting a pre-conference session on Best Practices for Adjudicating Campus Sexual Misconduct, and will be providing a concurrent session on Understanding the Consent Construct.

ACPA 2004 Look for the NCHERM/Lifelessons Online Booth in the Exhibition Hall. Cori and Brett Sokolow will both be there. Come and say hello and check out our newest publications, videos and Sexual Assault 101, our interactive CD-ROM.

NASPA 2004 Look for the NCHERM/Lifelessons Online Booth in the Exhibition Hall. Cori and Brett Sokolow will both be there. Come and say hello and check out our newest publications, videos and Sexual Assault 101, our interactive CD-ROM.

Details on the NCHERM “Special Counsel” program

As a result of increased interest and demand, we have formalized the NCHERM Special Counsel program. This is a flat-fee retainer arrangement for interested colleges and universities that allows you to take advantage of our services more cost-effectively. The “Special Counsel” program appoints Brett Sokolow as your campus “Special Counsel for Student Conduct Issues.” We execute a flat fee retainer that is far less than what you would pay for the services individually, and in return NCHERM provides you in the course of one year:

1) Three on-site campus visits for consulting work and/or student programming;
2) A report or assessment or review (e.g., judicial procedures or conduct code updates, or implementation of the NCHERM model code) can be selected in lieu of an on-site visit;
3) Reasonable off-site consulting time, by telephone, e-mail, and/or fax, as you encounter student conduct issues, complex complaints, media issues, etc.
4) Reduced fees for additional on-site visits and expert witness\litigation support.

The program is growing in popularity, and we have plans to cap it at twenty colleges. We want you to have quality access to Brett’s expertise, and don’t want him spread too thinly.

A New NCHERM video is born

Finally, NCHERM has released the tape of the Judicial Decision-Maker Training Academy as a video package. It includes a six-hour tape of the Academy, plus a CD-ROM containing academy materials and PowerPoint slides. The package is $399.99 or $299.99 if you have attended or will attend an Academy. Contact us for details—this package has not been posted to the website yet. If you weren’t able to make it to an Academy, or you came and want a video version, now is your chance to obtain it.

NCHERM Model Code of Conduct Now Available

As you may have heard, Brett has finally finished the model code of conduct that he has been writing incessantly for the past two years. He is very pleased with the result. It is a values-based code for the 21st century college. The code is written to be developmental and educational, and is quite different from the generation of conduct codes in use on most campuses. It is easy-to-understand, user-friendly, and grounded in a set of five core values: community, integrity, respect, responsibility and fairness. Unlike other model codes, the NCHERM Model Code is only available to our clients, and certain consulting arrangements are required with NCHERM to accommodate the models to your institutional culture and needs. One size does not fit all. This is why BrettI has resisted writing a model so far, but as long we collaborate to modify it appropriately, we think you will find it an invaluable evolution of the conduct code as you know it.

Free Article: Legislation and Litigation Update for Student Affairs by Brett A. Sokolow, JD

Introduction

Two to three times each year, NCHERM briefs its clients on key legislation and litigation in higher education. We thought it would be helpful to compile a small sample of these briefings to share with you, as an example of the services we bring to the campuses with which we consult. This information is not provided to you as legal advice. Please consult with competent counsel in your jurisdiction before acting on any of the information herein. If you like this briefing, and would like to receive our regular updates, please contact us. Every year, a few dozen court cases and administrative investigations are handed down which have an impact on student affairs. Rather than report on all such cases, this article identifies a core of important cases from the last few years that are especially significant, either because of their holdings, or because of the relevance and applicability these cases have taken on since being decided. In briefing these cases for you, this article has attempted to draw from each case its most significant aspects, and to highlight for you practical information in applying the lessons of the case to your campus.

Key Case Review

1. Stanton v. University of Maine, 773 A.2d 1045 (Me. 2001). A seventeen year old girl was attending a camp at the University of Southern Maine, and was staying in a campus residence hall during the camp. She brought a male camper to her room, where he allegedly sexually assaulted her. She sued the college for negligence.
Stands for the proposition that: The days when courts would automatically assert that colleges had “no duty” to ensure student safety are almost over. Overbroad foreseeability analysis in this case is traditional, dating back to Mullins v. Pine Manor, “[T]hat a sexual assault could occur in a dormitory room on a college campus is foreseeable and that fact is evidenced in part by the security measures that the University had implemented.” Under this logic, anything bad that happens in a residence hall is foreseeable because we undertake security precautions. But see below, for discussion of a less-traditional take on specific foreseeability that hopefully portends the future of foreseeability analysis by the courts. Critical to the decision of the court was that students on campus at the same time received safety and security information about residential living. The campers living in the same facilities did not.

2. Murrell v. Mount St. Clare College, 2001 WL 1678766 (S.D. Iowa 2001). A female student brought a male student to her room on campus. She asked him to leave, and when he did she entered the shower. He re-entered her unlocked room and allegedly sexually assaulted her. She sued the college for negligence. Plaintiff asserted as part of her claim that the college created a false sense of security because the college misled students when it failed to report several sexual assaults in its Clery Act crime statistics (Mt. St. Clare was fined by the US Department of Education for these violations of the Clery Act).
Stands for the proposition that: a) Colleges do not create liability when they misrepresent Clery Act crime statistics, especially when there is no evidence the sexually assaulted plaintiff relied on those statistics to their detriment. Actually, it would make no difference if the plaintiff had relied on the statistics to her detriment. This is good law made though a poorly argued case. Having read the case documentation, the college never briefed the court that the Clery Act specifically states that evidence of non-compliance cannot be used in a negligence action, and the court never read the Clery Act to figure that out either. And…
Stands for the proposition that: b) Where Murrell alleged to have been sexually assaulted in her residence hall by a male she invited to her room, the court agreed with the premise of the Stanton court, above, but not with the holding. The Murrell court cited that a landlord has a duty to protect tenants from reasonably foreseeable harm, but the court could not assume foreseeability unless,
…the landlord had notice of repeated criminal assaults and robberies, had
notice that these crimes occurred in the portion of the premises exclusively
within his control, had every reason to expect like crimes to happen again,
and had the exclusive power to take preventive action…A college, or any other
kind of landlord, is incapable of foreseeing an acquaintance rape that takes place
in the private quarters of a student or tenant, unless a specific student or tenant
has a past history of such crimes.
See also Freeman v. Busch, 199 F. Supp. 2d 907, S.D. Iowa, April 8, 2002

3. Mallory v. Ohio University, 2001 WL 1631329 (Ohio Ct. App. Dec. 20, 2001)
Stands for the proposition that: In sexual misconduct cases, using legalistic terminology WILL get us in legal trouble. Colleges have no legal authority to determine if a student has committed a rape, sexual, assault, or sexual battery. We have authority to determine if a student violated our policy on sexual misconduct, but to imply more is to risk defamation. In this case, a University Health Director stated “[Mallory] definitely committed a sexual battery, from the information that was gathered.” The court held this statement to be slander per se.

4. Tigrett v. Rector and Bd. of Visitors, U. Va., 290 F. 3rd 620, C.A. 4 (Va.), May 14, 2002
Stands for the proposition that: a) Students are starting to make claims against college conduct boards that are untrained (or under-trained) under the theory of “supervisory negligence.” This claim against UVA did not prevail. Does this portend a trend in litigation of this type? Know the law on supervisory liability for a public college (a section 1983 action): (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiffs; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference” to or tacit authorization of the alleged offensive practices; and (3) that there was an “affirmative causal link” between the supervisor’s inaction ands the particular constitutional injury suffered by them. Query: Imagine the following scenario—A student conduct committee asserts that it is like any student organization, and is not an arm of the administration. 90% + of the members refuse to attend training, and assert that the college policies are anti-student, and that they will interpret them to their liking, under their authority as appointees of the Student Senate. Your action?
Stands for the proposition that: b) Due process is not violated at a public institution when an appellate officer takes an appeal from the accused and decides to increase the sanction as a result of that appeal, if the sanction is reasonable and proportionate to the severity of the offense.

5. Hayut v. State University of New York, et al, 2002 U.S. Dist LEXIS 14203.
The court found no merit in any of Hayut’s claims and granted the summary judgment. Inbal Hayut alleged that Professor Alex Young sexually harassed her throughout the semester. Young referred to Hayut as “Monica Lewinsky” and made the following comments in front of the entire class: “How was your weekend with Bill?” “Be quiet Monica, I will give you a cigar later,” and “You are wearing the same color lipstick that Monica wears.” The court held that Hayut had not shown that the events complained of occurred with any frequency or severity. The court found that to be “sporadic and infrequent conduct” and insufficient to establish a hostile environment claim.
Stands for the proposition that: Courts continue to be hostile to expansive views of what constitutes a “hostile environment.” Even though Young’s conduct was highly offensive and inappropriate, it did not rise to the level of “actionable sexual harassment.” The court found that nine comments over a seven-month period could not “reasonably be thought to add up to sexual harassment.” The court also held that Hayut had not shown that the conduct interfered with her educational progress. (This case review adapted from an article in the Report on Campus Safety and Student Development by Ken Kozlowski).

6. Schieszler v. Ferrum College, (No. 7:02CV00131, July 15, 2002, USDC, WDVa.). When the Dean discovered that a student was suicidal, student was made to sign a behavioral contract. Further indications were given to the Dean that student still intended to try to kill himself. Student did in fact commit suicide. A negligence lawsuit claimed Ferrum knew or should have known that student was likely to attempt to hurt himself if not properly supervised, and that because Ferrum negligently failed to take adequate precautions, student died as a result.
Stands for the proposition that: Ferrum College had a duty to protect a student from the foreseeable danger that he would commit suicide. While there is generally no duty to assist or protect someone from harming themselves under the law, an affirmative duty will arise when there is a “special relationship.” The court found a “special relationship” was formed contextually, by Ferrum’s undertaking of efforts to intervene in the suicidal behavior. The court held that where there was an obvious and “imminent probability of harm”, the college had a duty to do more than it did. Ferrum did not follow-up on subsequent suicide threats made by student (if these were death threats made against another student, it surely would have), or mandate counseling, or contact parents. What are the implications for many of us who might use “behavioral contracts” in such cases? What purpose do these contracts serve other than to prove foreseeability when a student succeeds at suicide despite our efforts at intervention? If the Dean at Ferrum knew the student was going to kill himself, the Dean would of course have intervened. Any of us would have. The Dean believed the student would abide by the contract. These contracts impose duties on both parties, but colleges are not mental hospitals. Where a student engages in behavior that violates the code of conduct, such as “behavior that, attempts, threatens or poses a danger to self or others” perhaps that student is no longer someone who can remain a member of the campus community.

7. King, et. al v. Eastern Michigan University, 2002 WL 2012411, E.D. Mich., July 17, 2002.
Stands for the proposition that: Universities can be liable in monetary damages to students under Title IX for sexual harassment that occurs off-campus, such as during a study abroad trip, if it can be shown that a) the school has control over the harasser, and b) the school had control over the context of the harassment. In this case, the school had control over the harassers because they were students, and had control over the context because it was an excursion organized under university auspices, with a university employee along as adviser.

8. US Department of Education’s Office for Civil Rights Holds Harvard University Policy Does Not Violate Title IX. Stands for the proposition that: Colleges have an obligation to investigate credible reports of sexual misconduct where evidence exists—from any source—to support a reasonable suspicion that a policy violation occurred. Harvard University implemented a procedural change, requiring substantial independent corroboration in allegations of sexual misconduct before Harvard would investigate an allegation. A complaint was filed, alleging that this change in policy violated Title IX. Shortly before the OCR finding was released, Harvard modified its policy, stating that victims could self-corroborate by providing evidence such as diary entries, evidence of behavioral changes, etc. The decision to investigate sexual misconduct is not discretionary for a college, unless there is no evidence to indicate support for an allegation.

9. US Department of Education’s Office for Civil Rights Holds Boston University Did Not Violate Title IX. Stands for the proposition that: a) Title IX requires colleges to provide a prompt resolution of sexual assault allegations. That BU took over a year to administer a complaint and hearing, and communicate a final resolution of the allegation was not unreasonable, here. Why? BU was able to show cause for each of the delays and kept sufficient records to show the delays were reasonable. Some of the delays were in fact caused by the alleged victim’s attorney. But, a year is sometimes too long. This investigation shows that OCR looks at delays on a case-by-case basis, and where delays cannot be explained, or appear to be heel-dragging, even 30 or 60 days could be too long.
Stands for the proposition that: b) A student complained of sexual misconduct, and the university charged her with a violation of the college policy on alcohol that occurred during the claimed sexual misconduct. OCR concluded that violation of Title IX is not present absent a showing that the practice by the institution of charging victims with policy violations creates a chilling effect on the willingness of victims to report the sexual violence they have suffered. Here, there was no evidence to show that BU’s policy caused victims to decide not to report. Had there been such evidence, OCR could well have found BU’s policy to violate Title IX.

NCHERM 2003-2004 Key Risk Management Checklist for Student Affairs

1. Ensure you are meeting the disclosure requirements of the Campus Sex Crimes Prevention Act. Consequently, have you developed a campus policy on admitting, hiring, evaluating and terminating registered sex offenders within your community? Are you asking key questions on felony convictions in your employment and admissions application materials?

2. Instigate a Clery Act compliance audit (internal or external). Plaintiff’s attorneys are starting to brief Clery Act non-compliance as evidence of campus negligence.

3. Instigate implementation of a reporting and resolution apparatus/training for sexual harassment issues that arise when students/staff are abroad.

4. Understand the implications of the Harvard OCR decision on investigations of complaints of sexual assault. Corroborating evidence is needed, but need not be independent.

5. Mandate safety orientation and awareness programs for students if yours is a “broad foreseeability” jurisdiction. Enforce your mandate meaningfully.

6. Understand the implications of Mallory v. Ohio for public statements about students involved in crimes. Loose lips can lead to slander and libel suits.

7. Understand the elements of a claim of “supervisory liability” for public colleges under US Code section 1983.

8. Encourage your campus judicial affairs office to set, maintain and enforce training requirements and criteria to avoid “negligent supervision” claims.

9. Be willing to increase a sanction on appeal, where appropriate. Doing so does not violate due process.

10. When a student reports something that appears to be a felony, we need to know what our state laws require college employees to report, and to whom, and develop a reporting policy accordingly.

© The NCHERM Newsletter. Fall 2003. All rights reserved.

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