Hello friends and colleagues. Welcome to the NCHERM Spring 2004 Newsletter. Here’s a quick overview of what’s inside this issue:

1) Updates on NCHERM news and activities
2) New collaborations for NCHERM
3) The NCHERM Spring 2004 calendar of seminars
4) The updated “menu” of NCHERM student programs and consulting workshops
5) The NCHERM 2004 Whitepaper: Crafting a Code of Conduct for the 21st Century College

If you would prefer not to receive our quarterly newsletter, please e-mail NCHERM@aol.com and ask to be removed from the subscription list. We’ll take care of it right away.

Updates on NCHERM News and Activities
We’re still recovering from fall ’03. Fifty-four campus visits went by in a whirlwind. Many of our clients are experiencing serious increases in sexual assault, alcohol, and hazing issues, and that appears to be true for spring ’04 as well. In mid-fall Brett started compiling a list of all the workshops that NCHERM provides. We had never formalized them all into a list. We were shocked when the list came to 20 different offerings—it just kind of snuck up on us. Now that the list is complete, we have taken to calling it “the menu” around the office, and it seems to be very helpful to clients and prospective clients, as a means of being able to see the full range of services we now have available. Spring 2004 is shaping up to be a busy semester. If you haven’t contacted us yet to get on the calendar for a campus visit, take a look at “the menu” below and perhaps one of our topics will cover an area of interest and need for your campus. We are already scheduled to visit New York, Idaho, Utah, New Jersey, Wisconsin, Nebraska, Iowa, California, Washington, Colorado, Maryland, New Hampshire, Illinois, Massachusetts and Texas in the coming months. Hope we can visit with you too.

The “Special Counsel” program is growing. Brett Sokolow now serves as Outside Counsel to the University of Dayton, Warren Wilson College and the Colorado College. These clients will be joined this semester by at least three other colleges. We included details of this program in the Fall ’03 Newsletter. Contact our office for more information.

The ASJA conference in Florida was great, and we are now looking forward to NASPA and ACPA. We have contracted to completely overhaul the NCHERM website, and that should be ready by summer. Finally, our plans to move the office to bigger digs are still in progress. Summer may be optimistic, but definitely by 2005.

New Collaborations for NCHERM
On January 30th, NCHERM presented a seminar at Union College in Schenectady, NY on the topic of Culture Change for College Campuses on Alcohol and Sexual Assault Issues. Not only was the seminar a success, but it marked the start of a collaboration between Brett Sokolow and Alan Berkowitz. Alan may be familiar to many of you as a well-known psychologist and consultant who is the co-founder of social norms. Alan and Brett share a philosophical approach to culture change that allows them to address vexing problems from different perspectives, and combined, they provide creative problem-solving for the serious issues of student health and wellness on our campuses today. Alan and Brett will be working together more in the future, providing seminars and visiting clients who find their combination of legal expertise, perspectives from psychology, and developmental emphasis to be an unbeatable combination.

The NCHERM Spring 2004 Calendar of Seminars

NCHERM has already sponsored two seminars in this spring semester, in New York and Florida. We have expanded our seminar topics, but for those of you looking for judicial training events, they will return in the fall of ’05 for a series of twelve regional academies. Host sites are being selected now. Please contact us if you would be interested in hosting.

1) January 30th—Union College (NY)—Culture Change for College Campuses on
Alcohol and Sexual Assault Issues
2) February 10th—Saint Leo University (FL)—Sexual Assault, Sexual Harassment and Title IX: Managing the Risk on Campus
3) March 5th—Adelphi University (NY)—Risk Management Strategies for Student and Judicial Affairs
4) March 19th—Central College (IA)—Culture Change for College Campuses on Alcohol and Sexual Assault Issues
5) March 26th—University of Denver (CO)—Sexual Assault, Sexual Harassment and Title IX: Managing the Risk on Campus (Right before NASPA)
6) March 31st—Thomas Jefferson University (PA)—Culture Change for College Campuses on Alcohol and Sexual Assault Issues, co-presented with Alan Berkowitz (Right before ACPA)
7) April 13th—Anne Arundel Community College (MD)—Risk Management Strategies for the Community College (tentative)
8) Events in Texas and California are in the final planning stages—look for more information soon

“The Menu” of NCHERM Student Programs and Consulting Workshops

Student Programs:
1) Drunk Sex or Date Rape: Can You Tell the Difference?
2) Ten Things Every Student Should Know About Drinking
3) A Conversation About Consent
4) What You Don't Know About Hazing Can Kill You

A one-hour interactive program for male and female audiences of all sizes

Brett Sokolow is a higher education attorney who specializes in sexual misconduct and campus security. He is the President of the National Center for Higher Education Risk Management. Brett is the Editor of the Report on Campus Safety and Student Development, and the author of nine books on campus security, sexual misconduct and campus judicial affairs.

Brett draws on his legal experience to facilitate this interactive jury exercise where the audience "hears" a trial based on a real sexual assault case. Brett has presented this program at 800 colleges and high schools with resounding success.

HOW DRUNK IS TOO DRUNK?
Students on our campuses today engage in a hook-up culture of random sexual encounters with other students, usually fueled by alcohol. But, just because lots of students are getting drunk and hooking-up doesn't make it right, or make it legal. When does a hook-up cross the line? Students don't really know, and they've heard confusing messages. This program teaches students about incapacity and blackouts, and dispels common myths about alcohol and sex.

WHAT IS INCAPACITY?
During the first 15 minutes of the program, Brett introduces the audience to Todd and Amy, two students involved in a drunken sexual interaction after a party. Audience members learn the facts of the case, knowing that they will play the role of jury, deciding whether Todd sexually assaulted Amy, or that he is not guilty. Once Brett shares the facts of the case, jury members ask questions about the situation and the legal standards. Brett uses the Q&A to help jury members understand blackouts, incapacitation, the legal actual/constructive knowledge standard, the "myth of puking" and how incapacity can invalidate consent.

NO CAPACITY=NO CONSENT

Once the jury's questions are answered, the audience takes a vote. 50/50? 60/40? 80/20? How will your students vote? Every jury is different, but no jury is ever unanimous about Todd and Amy. After the vote, jury members share with the rest of the audience. Was Amy incapacitated? Why or why not? Did Todd know it? Should he have? The debate rages and students are influenced by the viewpoints of their peers.

MAKING ASSUMPTIONS IS MAKING A MISTAKE
Brett ends the program with a strong message about drunk sex, and the lessons that we can take from the case of Todd and Amy and other cases like it. More importantly, students draw their own conclusions from the case and take away lessons about their own behavior and decisions, and how to reduce their own risk.

10 THINGS EVERY STUDENT SHOULD KNOW ABOUT DRINKING
You're at your wits' end with alcohol programming. Reaching students is getting harder and harder. Scare tactic programs don't work. Personal-experience programs are only powerful and effective for short-term behavioral impact. "Don't drink" programs mean nothing to students who want to get wasted while drinking from cups eight times the size of the average human bladder. "This is how alcohol affects your brain programs" put students to sleep-and they know how alcohol affects their brains-that's why they drink it. Your social norming efforts are beginning to bear fruit, but these efforts are mostly passive. This fresh, new, innovative program will help you to expand your social norms messages with an interactive, an engaging presentation that connects with students.

"Ten Things" is not about having a dry campus or telling students not to drink. It will reinforce those students who choose not to drink, or to drink moderately. But, many of our students are going to drink no matter what we do-so let's get them drinking smarter and drinking more safely.

"BUT YOU CAN'T TEACH STUDENTS HOW TO DRINK!
No, any moron with a hand and a mouth can figure out how to do that for themselves. Just like anyone can get behind the wheel of a car and figure out pretty quickly how to get it to move. But, classes and licenses are needed to understand advanced control and the rules of the road. Drinking is no different than driving in this regard. It involves a skill set to be done safely and properly. No one is teaching this skill set to students for fear that they will drink or drink more. Do people who take driver's education drive more because they took the class? Most of our students are going to drink. They are going to endanger themselves. We have an obligation to help them build the skill-set that will allow them to reduce their risk. Doing so will have a long-term behavioral impact, because it changes how students process and control their drinking.

THIS PROGRAM DOES NOT TEACH STUDENTS HOW TO DRINK!
Brett Sokolow has been programming about sexual assault and alcohol risk reduction for seven years. He is President of the National Center for Higher Education Risk Management. He has done over 800 programs at colleges and high schools around the country. He is a seasoned and experienced presenter with student audiences of all sizes and types. Brett offers a frank and blunt reality talk that students tune into and respect. And a little bit of dry wit can't hurt, but this is not a stand-up comedy act. Brett uses compelling stories and real-life legal cases to make his points, supported by engaging slides, visuals and graphics.

This program is highly compatible with second-tier social norming efforts that reach out to students to reinforce "Protective Behaviors" and reduce risk. Additionally, Brett can work in data from your school's CORE or other student AOD surveys to reinforce your existing on-campus efforts.

Read on for more information on the Ten Things Every Student Should Know

Here are the topics that this program will cover:

1. Be 21, or understand the consequences if you aren't

2. Goal-setting for your drinking-drink to get buzzed, not to get drunk

3. Plan your drinking (and stick to your plan)

4. Understand the "myth of puking"

5. Explore your limits, and how to do so safely.

6. Portion control/food/pace

7. Be familiar with the type of alcohol and stick to one type

8. Use the buddy system (smartly!)

9. Avoid drinking games

10. Be conscious of shifts in your tolerance

"What You Don't Know About Hazing Can Kill You"

A one hour interactive program for Greeks, Athletes, ROTC, etc. This is a workshop where audience members are challenged to work in small groups and think critically to identify problematic practices that might violate state hazing law and/or campus policy, and propose alternative events and practices that would still allow for group engagement without violating law/policy.

"A Conversation About Consent"

The newest program is called A Conversation About Consent. It is an advanced program on sexual communication. It is an interactive program, and I can facilitate it in large groups, or better, in a series of smaller workshops.

Men and women make enormous assumptions about consent, and often don't get how it really works. This program challenges participants to work together to define and understand consent, to go beyond "No means No."

It asks critical questions such as:

1) Can men be raped? How?
2) Does consent have an expiration date?
3) Can consent be withdrawn? How?
4) When must consent be given—before, during or after sexual contact?
5) Are there different levels of sexual interaction to which consent must be specifically given?
6) What are some comfortable strategies for finding out if someone is interested in sex?
7) What are some indicators of a lack of clarity in a sexual situation?
8) What are common assumptions men and women make about sex.
9) How consent is like—and unlike—baseball
10) What is the difference between seduction and coercion?

The program is about an hour, give or take, and is non-threatening and inclusive. Students tend to find it engaging and a bit of a challenge to their current ideas about how consent works.

WORKSHOP OPTIONS

A visit from Brett can have one of these workshop topics as the theme, or can address several, depending on the length of the visit and the length of the workshops you choose. The four programs listed above are listed in workshop form below, because they can also be done as small group trainings.

1. Title IX Sexual Harassment Compliance Workshop
2. Risk Management Strategies for Student Organizations
3. Hazing Risk Management
4. Student-on-Student Sexual Misconduct Prevention Program
5. Faculty Consensual Relationships Policy Development
6. Problem Drinking Risk Reduction Program for Students
7. Changing the Drinking Culture of the College Campus
8. Students with Disabilities & Emotional Problems—Best Practices for Tough Times
9. Sexual Assault Response—Training for RAs and Other Key Personnel
10. Clery Act Compliance—Is Your Campus Reporting Crime Accurately?
11. Judicial Training
12. Legislation and Litigation Update
13. Code of Conduct Revision
14. Sexual Assault/Harassment Training for High-Risk Populations
15. Risk Management Strategies for Student and Judicial Affairs
16. Investigation Training (Civil Rights)
17. Best Practices for Responding to Campus Sexual Violence
18. Best Practices for Campus Sexual Misconduct Policy
19. Best Practices for Sexual Misconduct Judicial Procedures/Adjudication
20. Risk Management Training for Campus Law Enforcement Personnel

Title IX Sexual Harassment Compliance Workshop
(2 and 4-hour versions)

If yours is like most colleges, sexual harassment is one of your top five liability areas. Yet, most colleges are not compliant with the legal mandates of Title IX as they pertain to sexual harassment, let alone best practices for the field. Title VII gets all the attention, but employment-based claims are yesterday's news. Student-on-student claims are way up, and student affairs administrators are not as well prepared as HR for the investigation and resolution of these issues, especially when the sexual harassment has a physical component. This workshop can be addressed to faculty, administration, staff, students or other pertinent groups, helping colleges to assure compliance with Title IX, proper reporting, and appropriate responses.

Risk Management Strategies for Student Organizations
(2 hours)

More and more institutional risk is arising from the activities of student organizations, from fraternities to the mountain-climbing club. A structure for helping these organizations to monitor their own risks, and give oversight to college officials is highly beneficial. Some colleges have such systems, and they are well-developed. Others do not, or are just starting to help student organizations manage risk. This session is a primer on just how to craft such a system, and the ingredients needed to make it work.

Hazing Risk Management
(2 hours)

Hazing—within Greek organizations, bands, teams, ROTC or other student groups—is part of a culture. Most who haze know it is wrong, and often illegal. Prohibiting hazing is not enough to stop it. Hazing is secret—hidden underground and accepted by those on whom it is inflicted. Zero tolerance sends an important message, but risk management will be more successful when each group has a chance to reflect on its practices, confidentially identify those that are high-risk, and then work to problem-solve, either to change the practice to make it lower risk, or to abandon the practice. But, if the practice is to be abandoned, how can we create a meaningful, positive ritual, initiation, tradition or bonding experience that will replace it. This workshop is a nuts and bolts effort to eradicate hazing for high-risk groups. It can also be done as a trainer training.

Student-On-Student Sexual Misconduct Prevention Program
(1 to 1.5 hours)

90% of college sexual assault occurs in the presence of alcohol or other drugs. How alcohol affects sexual consent is THE issue. Students don't get it. They go out, get drunk, hook-up, with no thought for the consequences. This interactive program, "Drunk Sex or Date-Rape: Can You Tell the Difference" has been presented on over 750 college campuses. Brett Sokolow facilitates this interactive program where the audience gets to be the jury—based on a real life case. The jury hears the facts, learns the law, and takes a vote on guilt/innocence. No two juries vote alike, and students are outspoken in their views. The case is controversial, and a great conversation starter. Students think about what incapacity means, and how it impacts sexual consent. More importantly, they reflect on their own behaviors and choices.

Faculty Consensual Relationships Policy Development
(1.5 to 2 hours)

Faculty are resistant to limitations on their abilities to fraternize with students and amongst each other. Rightfully so. This workshop encourages faculty to take on voluntary restrictions, or implement self-governance policies—to great effect! Faculty often view these policies are as attempt to take away their power or rights. Another perspective is shared that enables faculty to see these policies as strong self-protection. Different policy models are explored, and rational language is proffered. Extending the policy to staff, to RAs, and creating exceptions is all in the details. Sometimes, faculty believe that if they enter into a relationship with a student, there might be penalties. This workshop is more about eliminating power differentials and the potential for ugly legal consequences for pursuing romantic liaisons at work.

Problem Drinking Risk Reduction Program for Students
(1 hour)

"Ten Things Every Student Should Know About Drinking" is a controversial approach to alcohol education. "Ten Things" is not about having a dry campus or telling students not to drink. It will reinforce those students who choose not to drink, or to drink moderately. But, many of our students are going to drink no matter what we do—so the goal of this program is to get them drinking smarter and drinking more safely. "BUT YOU CAN'T TEACH STUDENTS HOW TO DRINK! Anyone can get behind the wheel of a car and figure out pretty quickly how to get it to move. But, classes and licenses are needed to understand advanced control and the rules of the road. Drinking is no different than driving in this regard. It involves a skill set to be done safely and properly. No one is teaching this skill set to students for fear that they will drink or drink more. Most of our students are going to drink. They are going to endanger themselves. We have an obligation to help them build the skill-set that will allow them to reduce their risk. Doing so will have a long-term behavioral impact, because it changes how students process and control their drinking. That's what this program is all about.

Changing the Drinking Culture of the College Campus
(half-day to full-day)

Dozens of colleges have attempted to break the hold of alcohol over their campuses. Dozens of colleges have failed. Is going dry the right answer? Getting rid of the Greek system? Will that really reduce risk, or just transfer it? What other approaches are available, and how effective are they? This session is a how-to recipe for colleges that truly desire to change their cultures, and don't want to fail as so many others have. Brett Sokolow is a change agent and expert problem-solver who has the knowledge and experience to help colleges accomplish very difficult goals. What's standing in the way of success? Are students part of the strategy? How environmentally holistic is it? Is there a comprehensive educational strategy that is sufficiently funded and staffed? Does social norming play a role? How? How is the strategy being introduced to the community? Are consistent messages being sent? Is it an evolutionary or revolutionary strategy? Are traditions being abandoned? Can we anticipate a reaction from alumni, parents and/or donors? All of these questions and many more are addressing, adding up to an honest opportunity for a safer campus.

Students with Disabilities & Emotional Problems—Best Practices for Tough Times (1.5 to 2 hours)

The writing is on the wall. College administrators know that in the next ten years, this will be one of the toughest issues colleges face. ADA and 504 litigation abounds, and the Office for Civil Rights has now decided that it's not enough to treat a disabled student fairly, it's more a matter of how you treat them fairly (Guilford College Decision, 2002). From classroom disruption to overbooked counseling centers to suicidal students to judicial affairs offices that are asked to make exceptions for a student's disability, colleges are facing a crisis. Out of this morass, certain best practices are emerging, as ever more complex questions are arising. This workshop helps college administrators to understand what is coming, and to plan today for the issues colleges will face tomorrow.

Sexual Assault Response—Training for RAs and Other Key Personnel
(1.5 to 2 hours)

A student comes to you, seeking help in the aftermath of sexual violence. Will you have any idea of what to do? What are the best practices for helping a victim in need? What is the critical information you need to convey to someone who has just been assaulted? Will certain practices help the college to provide better assistance, thereby reducing the potential for liability? What is the significance of paper bags? Who should collect evidence? Should a victim shower? How long can the hospital college bodily fluid samples? Will insurance cover an emergency room visit? What is a SANE? All these critical questions, and their answers are part of this useful training.

Clery Act Compliance—Is Your Campus Reporting Crime Accurately?
(1.5 to 2 hours)

This law was passed fourteen years ago, and most colleges still don't get compliance right. This is a nuts & bolts session on assuring accurate, full and correct compliance with the mandates of this campus crime reporting and recordation law. What are the 15 Clery Act crime categories? How do the geographic requirements work? What is the hierarchy rule and how does it work? Why are you reporting non-forcible sex offenses—I bet you're not likely to have any. How does your crime log look? It is complete and available? Are annual reports made available correctly, and are they distributed to prospective students and employees? What are the new requirements for reporting campus registered sex offender information? Brett Sokolow wrote the book on Clery Act compliance (The 1999 Clery Act Compliance Manual).

Judicial Training

Brett Sokolow has trained judicial boards at over 250 colleges and universities. He is available to visit your campus for several different types of judicial trainings.
NCHERM offers general trainings on due process and fairness issues, in either half-day or full-day formats (4 hours or 6+ hours).

NCHERM also offers specialized training for sexual misconduct complaints, together with the general training above, or as a separate training, either in a half-day or full-day format.

NCHERM also provides an advanced deliberation training, focusing on the four steps of the dialectical process and an analytic for processing complex cases and multiplep-violation cases. This training is six hours. Our judicial trainings have four formats:

Half-day: four hours of on-campus generalized training on procedural rules, fair process, questioning skills, and evidentiary considerations

Full-day: six hours (or more) of generalized judicial training, including information from the half-day session, plus information on using expert information, precedent, sanctioning, gestics, and more mini-cases to train on.

Sexual Misconduct Judicial Training: available in half-day or full day versions (a lot of colleges do two halves, the general training and the sexual misconduct training). This training takes the skills of the other trainings, and applies them to the specific context of sexual misconduct, such as how to apply investigation findings, how to interpret medical and alcohol evidence, how to deal with past sexual history issues, and evidence about things like rape trauma syndrome.

Dialectical and Deliberation Training: six hours. This training focuses not on the hearing, but on the skill of applying policy to a complex set of facts through a five-step analytical method. It focuses on how we determine violations and deliberate on responsibility.

Legislation and Litigation Update
(1.5 to 2 hours)

Brett Sokolow provides workshops on cases and litigation in higher education law, updating you and your staff on important precedents, and compliance issues. Workshop topics feature updates on FERPA, the Clery Act and the Campus Sex Crimes Prevention Act, Title IX and other current issues.

Code of Conduct Revision
(off-site or on-site)

Has it been more than a year since you revised your student conduct code? If so, it's time to take a look, and update your code. Let NCHERM's expertise make it easier for you. Policy writing is what we do, and the four options below describe how we do it. Send us your conduct code, and we¹ll provide you with a written report, identifying areas of weakness, suggesting policies that you may want to consider adding, and highlighting areas where recent cases or legislation suggest or demand changes. We'll help to bring you up to date on both policies and judicial procedures, and we'll do it for a fraction of the cost that others might charge.

NCHERM POLICY REVISION SERVICE: This is our most popular revision service, offering you a written report detailing the areas of your policies (policies only—this service does not revise procedures-see below) that need attention, and offering guidance for how improvements can be made. The report offers suggested language to help improve your code and address ever-changing trends in student behavior and ethical development. Language is not based on cookie-cutter models, but is custom-crafted to suit your institutional policy style and philosophy.

NCHERM POLICY AND PROCEDURE REVISION SERVICE: This revision service offers you a written report detailing the areas of your policies and student conduct procedures that need attention, and offers guidance for how improvements can be made. The report offers suggested language to help improve your code and address ever-changing trends in student behavior and ethical development. Language is not based on cookie-cutter models, but is custom-crafted to suit your institutional policy style and procedural philosophy, with special attention on reducing risk via streamlined procedures, modifying legalistic procedures, and making your proceedings transparent and accessible.

TIME TO RESTRUCTURE THE CODE OF CONDUCT: You need help and you know it. The policies of your code of conduct haven't been revised in 7 years or so, and are no longer adequately serving your community. Yes, you could borrow codes from other institutions (thereby perpetuating their possible mistakes), or use the ever-popular model code (which too few institutions take the time to modify and adapt to fit their communities). Or, you can work with policy experts at NCHERM to custom-create a code of conduct that speaks directly to the needs of your community. An option to restructure conduct procedures can be added to this service.

UNDER FIRE? MAKE SURE YOUR CONDUCT CODE WON¹T BE SEEN BY THE COURTS AS A SPEECH CODE: This policy review service is for colleges and universities that value free speech and want to ensure that their codes of conduct do not inadvertently prohibit speech protected by the first amendment. Today, colleges are being attacked and sued by interest groups such as the Foundation for Individual Rights in Education (FIRE) and the National Association of Scholars. It is possible to create reasonable expectations for campus civility without trampling on the rights of free speech. Let NCHERM help you strike a constitutional and workable balance. This policy review service examines only those areas of your code that address speech and expressive conduct (such as discrimination codes, creeds, mission statements, freedom of speech statements, harassment provisions, and the like) to help you guarantee the constitutional rights of your students. You may be surprised at what we might find. A written report will detail problem areas and offer suggestions for alternative language and phraseology.

Sexual Assault/Harassment Training for High-Risk Populations
(1 to 2 hours)

This is a specialized training for coaches, greek leaders, and/or athletic leaders on risk management of sexual assault and sexual harassment. Topics include how to recognize problematic conduct, how to intervene, how to help a victim, best practices for responding to a complaint, legal duties of reporting, confidentiality, informal reporting, recordkeeping, and retaliation. Special considering is given to false-reporting, investigation responsibilities, the rights of accused students, and the special vulnerability/responsibility of students of campus prominence, such as greeks and athletes.

Risk Management Strategies for Student and Judicial Affairs
(2 hour, 4 hour or all day)

This workshop offers a broad discussion of student affairs related risk. From staffing to training to federal compliance, this workshop helps to identify best practices and strategies for implementing risk management principles to reduce student affairs-related risk. Basic principles of risk management are shared, and special attention is given to risks related to judicial affairs.

Investigation Training (Civil Rights)
(2 hour, 4 hour or all day)

In this workshop, Brett Sokolow will provide four hours of intensive training on a model for civil rights investigations on college campuses. Such a model can be utilized to address all instances of violence, bias-related incidents, hate acts, stalking, sexual assault, and sexual harassment. The training will feature and explication of the model, a discussion of who should serve as investigators, necessary training elements, cross-functionality, and best practices for investigation procedures.

Best Practices for Responding to Campus Sexual Violence
(2 hours)

It happens on every campus. Students, mostly women, are victimized by sexual violence. Every college has a duty on the prevention side, but also a duty to respond to incidents when they occur. This seminar will establish two effective paradigms for quality-controlled campus response and victim assistance. Role definitions, crisis service, protocol and other relevant topics will be discussed.

Best Practices for Campus Sexual Misconduct Policy
(2 hours)

This workshop identifies and discusses seventeen critical elements for establishing a proactive campus sexual misconduct policy. It explores each element in depth and examines its applicability to your campus culture and environment.

Best Practices for Sexual Misconduct Judicial Procedures/Adjudication
(2 hour, 4 hour or all day)

This workshop identifies best practices for adjudicating sexual misconduct on college campuses. Composition of judicial bodies, separate boards, standards for adjudication, deliberations, evidentiary issues, appeals and dozens of other pertinent issues will be discussed on this topic of great potential liability.

Risk Management Training for Campus Law Enforcement Personnel
(2 hours)

This workshop offers a broad discussion of law enforcement related risk. From staffing to training to federal compliance, this workshop helps to identify best practices and strategies for implementing risk management principles to reduce law enforcement related risk. Basic principles of risk management are shared, and special attention is given to the special difficulties of enforcing and law policy in a campus setting.

The National Center for Higher Education Risk Management

A not-for-profit corporation

2004 Whitepaper: Crafting a Code of Conduct for the 21st Century College

By: Brett A. Sokolow, JD
www.ncherm.org
©2004 NCHERM. All Rights Reserved.

Introduction

Every year since the National Center was founded in 2000, we have published an annual Whitepaper on a topic of special relevance to student affairs professionals, risk managers, and higher education attorneys. The Whitepaper is distributed on the NCHERM e-mail subscriber list, posted on the NCHERM website, and distributed at conferences. In 2000, NCHERM published Sexual Assault, Sexual Harassment and Title IX: Managing the Risk on Campus. In 2001, NCHERM published Complying With the Clery Act: The Advanced Course. In 2002, the Whitepaper was titled It’s Not That We Don’t Know How to Think—It’s That We Lack Dialectical Skills, on campus judicial decision-making. For 2004, the NCHERM Whitepaper topic is again of special currency and relevance: Crafting a Code of Conduct for the 21st Century College. This topic was chosen for 2004 because of the special opportunity we in higher education have been given by the generation of Millennial students who now reside on our campuses.

The Millennial Opportunity

We have all been reading about “The Millennials.” According to the literature, this generation of students share noteworthy characteristics that differentiate them from previous generations of students. Perhaps most notably for readers of this Whitepaper, Millennials are “rule followers” to a much greater extent than students of any generation since the 1950s. Perhaps some in higher education reasonably expected a corresponding relaxation of campus judicial caseloads. Yet, as many student affairs professionals know, the presence of Millennials on our campuses has not resulted in across-the-board reductions of student conduct violations. Why?

Several reasons may provide explanation, including the reality that Millennials bring to campus more complex psychological issues and histories. However, there is another explanation that is also persuasive. Millennials are “rule followers,“ but their compliant nature is dependent upon at least two conditions: 1) that they understand the rule; and 2) that they agree with the rule or rulemaker. With this in mind, it is clear that we have been presented with an opportunity not to be missed. In theory (and at the same time if we can help students to better-manage their psychological difficulties and needs), we ought to be able to re-structure the campus environment to proactively reduce student misconduct. How?

We can provide Millennials with clear rules that are understandable to them, and with which they are in agreement. To do this, we must understand that the conduct code as we know it in its current form is an impediment to capitalizing on this Millennial opportunity. The conduct code is a legalistic anachronism, tacked onto the educational mission of the institution rather than being born of it and integral to it. We must reinvent the conduct code, and it is high time that we do so.

Crafting a Developmental Code

On too many college campuses, conduct codes are not considered to be of high-priority importance. They languish, little-changed, over long periods of time. Or worse, they remain completely unchanged, and rooted in the legalistic-style in which most codes are written. This Whitepaper advances not a further evolution of the conduct code, but a paradigm shift in what codes are, how they function, how they are utilized, and our perceptions of their value as a tool of risk management. The code is one of our most important tools for safeguarding the health and safety of our communities.

Before we delve any deeper into this Whitepaper, a quick note on terminology is in order. On many college campuses, we give a very broad meaning to the term conduct code that is imprecise and unwarranted.

• A conduct code IS nothing more or less than a list of rules governing the behavior of certain individuals and/or groups.
• A conduct code IS NOT a set of procedures. Procedural rules are distinct from conduct rules. Procedural rules tell us how the rules of a conduct code are enforced. This Whitepaper is not about procedures.

A conduct code is traditionally a laundry list of briefly stated “Thou Shalt Nots,” though many campuses have seen fit to expand this list with more elaborate policies where needed. This has resulted in outgrowing our current format, such that lists of policies are being used to supplement laundry lists of rules, and this makes for confusion over what the true rule is. Is it the one sentence in the laundry list that says “Hazing is prohibited”, or is it the paragraph about Hazing located forty-two pages later in the handbook? Is it both? On many campuses, the policy even seems to conflict with the rule, or elaborate on it in a way that shows the policy has been updated, but the rule has not. Frequently, statements in the handbook, online, and in brochures and other literature reveal multiple versions of rules that apparently address the same behavior (these provide a field day for plaintiffs’ attorneys suing colleges on behalf of students suspended or expelled in the campus conduct process by giving them the argument that their student client had insufficient notice of institutional expectations). Thus, it will help us if we clarify the difference between a rule and a policy, as used in this Whitepaper.

• A rule is a simple statement of that which establishes a violation of a behavioral expectation or standard.
• A policy is an explanation, expansion or elaboration upon a rule.

Having policies to supplement certain rules can be a welcome and beneficial addition to a conduct code, but only when it is clear how the rules and policies interrelate, and when drafters ensure internal consistency between rules and policies.

Legalism v. Developmentalism

Those familiar with my writings and my consulting work know that I am somewhat oxymoronic—I am attorney who is leading the charge to meaningfully de-legalize conduct codes. I feel strongly about this because creeping legalism is rampant in judicial affairs—even the name is legalistic. And, creeping legalism is generally a negative phenomenon in the context of higher education (for a more thorough treatment of this subject, please see my article Balancing Legalism and Developmentalism in the Campus Judicial Process, posted at www.ncherm.org (click Articles & Whitepapers). My view is that legalism and developmentalism are located on opposite ends of the continuum of student and judicial affairs practice. The more legalistic our processes, the less developmental and educational they will be. While I see certain areas where more attention to law as it impacts student affairs practice would be beneficial, each campus needs to balance legalism and developmentalism on the continuum, finding the balance that suits your campus best. Without question, campus judicial practice should be firmly located on the developmental side of that continuum. The conduct code can impact where on the continuum your campus falls, and most campuses could benefit from de-legalization of the code as a means of finding a more educational balance on the continuum. De-legalization can be accomplished at three levels.

Writing An Artful Code

Writing an artful code means taking extreme care with the language and phraseology and even the structure we use to construct a code. I will never forget my favorite conduct code blooper. I was engaged by a college in Massachusetts to review their code, and in doing so, I read the college’s alcohol policy. It stated, in part: “Whenever members of the faculty entertain underage students at their homes, alcohol shall be served.” Obviously, the word “not” was inadvertently omitted from the sentence, and that is a serious omission. But, artful code writing is about more than just good editing. Using descriptive language enhances the educational impact of a code. For some, this will be an entirely alien concept. Some of us were trained to write codes using vague language, to guarantee maximum flexibility in application.

In thinking about Millennials, we can see that a vague style of code writing does not serve a generation of students looking for guidance and rules they can understand. Here is an apt example. Most male students who commit sexual misconduct violations on our campuses do not intend to do so. They run afoul of our rules because our rules are vague, and students make self-serving assumptions against a backdrop of language that does not address their behavior realistically. Many of the codes I read are completely silent on the role alcohol plays in negating consent, on what incapacity means, and on the role blackouts play in misinterpretations of someone’s level of capacity.

If We Build It, They Will Come

In this day and age, failure to use the policy to give students clear guidance and clear standards is an abdication of our ethical obligation as educators. It’s this simple: if we give students clear rules they can easily understand, a great majority of them will choose to abide by these rules. If we continue with obtuse wording such as “it is a violation of policy to have sexual intercourse with someone whose alcohol or other drug consumption renders them unable to consent” they are left with an information gap. If we tell them not to have sex with someone “whose consumption of alcohol prevents them from reasonable resistance,” we’ve created an information vacuum. What does resistance have to do with date rape? What if they are so drunk that they do consent, but aren’t aware of it? These typical policy formulations are inartful.

It’s Not Easy Being Gray

Some code writers prize vagueness for its flexibility. I think that is a cop-out. I challenge you to write code language that is both specific and flexible. It is possible, and it is preferable. Recognize vagueness as a vestige of the legal underpinnings of codes. Historically, conduct codes have been modeled on legal statutes, and have taken on many of the same terms, imprecision, double-speak, and obfuscation. Have you ever read the language of a complex statute? Was it easy to understand? Was the language simple and clear? Even the sentence structure is peculiarly impenetrable. I suspect we lawyers make things difficult to understand as a means of self-preservation. We know that non-lawyers will need to hire us to interpret what we have written, thereby guaranteeing we will always have work. College conduct codes have followed this mode, with imprecise language, confusing punctuation, sloppy terminology, and intentionally vague clauses and terms. An example of such a rule from a college conduct code follows. It is from the actual code of a college, and though that college shall remain nameless, it is hardly blameless.

Harassment includes exhibiting, distributing, posting, or advertising publicly, offensive, indecent or abusive matter concerning any person or groups of persons;

This is exactly the sort of rule that is commonly found in many college conduct codes, and hardly begs a second look. But, take that look. Does this sentence make any sense? Is it hard to decipher? It is easy to read? Is the meaning inherently obvious on the first reading? No. You probably translated it in your head, automatically supplying what you think is the correct meaning. Would others give it the same interpretation? This sentence is mis-punctuated, the conjunctions and disjunctions are sloppy or non-existent and the elements of the rule are hidden within poor grammatical construction. Simply put—it has no art. Look at the same rule, written this time with care, precision and elaboration:

Harassment includes, but is not limited to:

1) The Public

• Exhibition, or
• Distribution, or
• Posting, or
• Advertising of

2) matter that is

• offensive, or
• indecent, or
• abusive, and that is

3) about any person or group

Is that better? It is certainly clearer. But, is it a good policy? Hardly. It lacks critical descriptive elements. It is also fatally overbroad in its trampling of free speech. If you look beyond the language of the two versions, which is almost identical, the punctuation changes help. But, what was most useful to you in interpreting what was written was the format change from the first version to the second. Most rules are written in narrative, or paragraph form. For a simple rule, that is best.

Structuring Rules Elementally

Though we do have some simple rules on our campuses, most rules are complex and multi-part. For such rules, a conduct code for the 21st century will express them elementally, using numbers and bullet points, clearly identifying for the reader the elements of the offense. Elements are those things that must transpire in order for a violation to exist. From the numbering of the elements above, it is clear that three elements must be satisfied in order for this harassment policy to be violated. Without these three elements, there is no policy violation. One or two out of the three is not enough. Not only is this type of formatting useful for identifying elements, it can also be used to clarify distinctions in terminology, as in this example:

Sexual Assault is sexual contact against the will of the victim, by force or without consent, or where the victim is incapable of resistance because of mental or physical incapacity.

Before you read on, try re-writing this rule in a format that is not narrative. As you do so, put yourself in the shoes of a male student on your campus, unsure of what the expectations of your community are with respect to your sexual conduct. You are looking for guidance. Try to frame the language educationally, to teach a student what he needs to know. Would you use the same words? Is simpler verbiage available? When I revise a code for a client, I take out my red pen, and mark through any language the meaning of which isn’t inherently obvious to me. If it doesn’t jump off the page, I have to work at interpreting it. I am willing to do that, but will our students put in the time and effort to understand it? Don’t see the rule as an “after the fact” tool to interpret whether someone has committed a violation. Instead, see the educational potential it can have for someone who isn’t sure what he can and cannot do. Here’s my shot at it. What does yours look like?

Sexual assault is sexual contact that is:

• physically forced; or
• done without someone’s consent; or
• where someone says `no’ or acts to show they do not want the contact; or
• where alcohol, drugs, or mental deficiency prevent resistance

Again, I don’t recommend this phraseology to you as a model for your campus. It is just an example of how to reframe narrative rules into educational tools. I chose to use alternate language to replace “against the will of” because there was more direct, descriptive language available to me. I also chose to clarify the distinction between mental and physical capacity incapacities. Finally, it should be clear that these bullets are not elements, unlike the harassment example above. Rather than being conjunctive, they are disjunctive. Each creates, on its own, a policy violation.

The Case for Examples

Artful codes teach. They fill in the gaps and answer questions. They are drafted with knowledge of the problem areas of campus judicial compliance. Having a problem with hazing—what can a better policy do to define and describe the behaviors in issue? Too many students needing hospital transports for alcohol, but not getting the help they need? Policy can help. Are students demonstrating confusion and ambiguity in sexual misconduct hearings? Policy can give proactive guidance if it answers the questions students need to have answered. Can I have sex with someone who is drinking? Someone who is drunk? How is drunk different from incapacitated? What if the person I am hooking-up with is blacking out, and I don’t know that? How much is too much? Does your policy answer these questions clearly? It should.

An element that distinguishes an educational and developmental code is the use of clear examples. For high-risk issues and policies that are frequently violated, the modern code takes the language off the page for students. Even an elemental rule, clearly identifying behavioral expectations, can lack context. I have innovated with the codes of my clients by providing, within the body of the code, examples of key policies. A short paragraph creates a vignette of a realistic scenario. The paragraph explains the behaviors and why the behaviors violate the policy. Examples bring the policy to life for students in a way that aids in code compliance. Suppose hazing is a campus problem, and that most of the students who haze are not identifying the behaviors as violative because the hazees are cooperating in the hazing voluntarily. A simple example showing consensual hazing can easily clarify for students that hazing violates the policy regardless of the consent, participation or cooperation of the hazee. Such an example can thereby become a useful tool for prevention.

Remove Legal Language and Phrases

The second method I propose for de-legalization of codes is attention to the legal language and phraseology we use. Codes are rife with legalisms, and we often aren’t even conscious of them. They set a tone, and send a message that conduct systems are like the criminal justice system, set up to right wrongs and mete out punishments. That’s not what a student conduct process is or does. For students to understand the administration of student conduct as an education process, we have to walk the talk. “Shall” is an inherently legal term. I’ve even seen definition sections that tell us that within the code, “shall” shall be used in the imperative sense. Glad we clarified that. “Will” is more direct and less legalistic. It can always substitute for shall. Shall we agree to use will in all our future code revision efforts? Words like “therefore”, “heretofore”, “hereinafter”, “whereas” and similar constructions also obfuscate our meanings. We must eradicate that which obfuscates. Where a sentence seems to cry out for a fancy conjunction like these, I find the old trick of reversing the sentence eliminates that need, and therefore makes the sentence much clearer. To wit, “The old trick of reversing the sentence makes it clearer by eliminating the need for fancy conjunctions.”

There is also a class of legally laden words drawn from the criminal law that I strive to avoid, and find codes without them to be easier to navigate. Below, I have created a table with examples of such words, and the non-legalistic, policy-based and civil alternatives I prefer. I am sure you can think of more.

Legalistic terminology Policy-based alternative
Case Complaint
Defendant Accused or respondent
Charge (a charge, to charge, be charged with, be guilty of the charge) Complaint, accusation (accuse), or violation
Guilty Responsible or in violation
Punishment Sanction
Verdict Finding or outcome

Another level of legalistic terminology relates to what we name offenses. If you have not yet read the holding in Mallory v. Ohio University, 2001 WL 1631329 (Ohio Ct. App. Dec. 20, 2001), I strongly commend it to you. This case stands for the proposition that using legalistic terminology can get us in legal trouble. Colleges have no legal authority to determine if a student has committed a crime, in Mallory a sexual assault. 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. We use legal terms of art in codes without considering the consequences. Perhaps we should consider alternate language to substitute for burglary, robbery, vandalism, arson, fraud, rape, sexual assault, and other words commonly understood to be crimes?

A Values-Based Code

The third technique for de-legalization of a code has to do with the overall format of the code itself. I first heard the idea of a values-based code from Jim Lancaster, when he was at UNC, Greensboro. I take no credit for this idea, but I am hoping to popularize a version of it and motivate administrators to champion values-based expressions. A values-based code couches violations in terms of community interests, and as expressions of the institutional mission. Yet, the purpose of this Whitepaper is not to encourage you all to go out and copy the format of Greensboro’s code, worthwhile though it may be. Most values-based codes are simply a shell of mission-centered categories imposed over a typical laundry-list of rules. The NCHERM Code of Conduct that I have written takes the values-based idea to its next logical step by weaving the values throughout the rules. What results is values-based, educational and developmental. The rules are embedded in the context of five core values that reflect the missions of many colleges and universities: community, fairness, integrity, respect and responsibility. I also have included in my code an effort to phrase my rules, when possible, as positive expressions of community expectations. I think this takes a values-based code to a whole new level, if you are among those of us who believe that our thoughts, and how we convey them, are strongly determinative of our actions. The NCHERM Code of Conduct expresses rules as “Thou Shalt (or “You Will” in my terminology), rather than as a list of “Thou Shalt Nots.” An example of a positive expectation is “Members of this community view hazing as disrespectful behavior. Hazing is defined as…”

Good Rules are Transparent, Accessible and User-Friendly

Yet another critical evolution for codes is the avoidance of what I call self-proving or self-defining terminology. Let’s take the example of vandalism. A laundry-list code might state as a rule that “Vandalism is prohibited.” My code would cover the same behavior as:

Damage or destruction to the property of another,
· intentionally or recklessly; and
· without authorization of the owner

This rule of course uses the elemental format you’ve seen above. More importantly, it does not use the word “vandalism.” Instead, it describes the behaviors that constitute vandalism. Vandalism is one of those terms that appear to be self-proving, and that is the danger of it. It is not self-proving or self-defining at all. Is vandalism intentional? What if you damage it accidentally? What if you destroy your own property? Your understanding of what vandalism is may differ from mine. Using only the word vandalism as the rule leaves it open for interpretation, and too vague to be considered an educational or developmental rule. Where possible, the goal is to specifically describe the behavior you want the rule to address, because when we set a fair and clear behavioral expectation for Millennials, they are likely to uphold it.

Selling Your Code

Even if you drafted a code that included all of the elements I have identified in this Whitepaper, it might not manage risk any better than your current code. To be effective, policies must take form off the paper pages of your handbook, or the electronic pages of your website. Millennials are no more likely than other generations of students to look up the rules and learn them. The policies must be brought to them. That educational effort is the obligation of the institution, and it requires judicial affairs and allied staff to see their functions not just as reactive, but as more proactive. The goal is to find opportunities to communicate policy and connect with students on expectations. Have the VP, Dean or President share some key policy highlights in a speech at orientation. Get your orientation leaders, RAs, FYE instructors and faculty to talk about some of the most critical rules with small groups of students. Provide programs that emphasize the policies of your campus. Use peer education and social norms messaging to promote policy awareness. Millennials have challenged us to understand their values. Let’s see what they can do with a set of clear rules that reflect their values and are communicated to them meaningfully. We owe them nothing less.

The NCHERM Code of Conduct is not a Model Code in the sense that Ed Stoner or Gary Pavela have published widely disseminated models. The NCHERM Code of Conduct is available to NCHERM clients who wish to work with Brett Sokolow to modify and adapt the code ideas offered in this Whitepaper to the culture and climate of their campuses. A “one-size fits all model” does not serve the institution as well as adapting that model to the institution could. Too often, models provide short-cuts and cookie-cutter results. To initiate a collaboration that will help to revise or replace your code with a 21st century code that truly reflects the values of your campus and the needs of your community, please contact Brett Sokolow at NCHERM 20 Callery Way, Malvern, PA 19355, Telephone: (610) 993-0229,
Facsimile: (610) 993-0228. Or email basokolow@aol.com.

© The NCHERM Newsletter. Spring 2004. All rights reserved.

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