May 052011

Today I had the opportunity to attend a webinar from the National Association for College and University Attorneys (NACUA) on the issue of the OCR “Dear Colleague” letter.

First, the information and perspective offered by the presenters (Amy Foerster of Saul Ewing LLP and Gloria Hage of Eastern Michigan University) was poignant and on target. They reviewed the structure and purpose of the “Dear Colleague Letter,” the institutional obligation to respond to complaints, procedural requirements, grievance procedure requirements, and prevention measures.

Of all of the material covered, I particularly enjoyed the review of confidentiality issues. They reiterated the important point that a complainant’s desire to maintain confidentiality may ultimately limit the ability of the institution to respond, but does not relieve the institution of its obligation to investigate and to respond, as well as to offer appropriate relief to the complainant (such as switching classes, living accommodations, etc.). The presenters reinforced that this is a complicated issue and even OCR’s choice of language does not always provide clarification.

While understanding that this was a program offered by attorneys for attorneys, the one disappointment I had with this webinar was the model code that was offered. While the presenters frequently stressed that it was just a model, in truth it is a poor model that reflects a “judicial” process rather than a “student conduct” process. The presenters needed look no further than their own association to find what remains to be the best legally-grounded document that is written in student development language in terms of Ed Stoner and John Lowery’s Model Code of Student Conduct. While the practices offered in the proposed code today may have been legally sound, they reintroduce a great deal of non-developmental language that Stoner and Lowery had helped us eliminate. Thus, my advice to practitioners is to continue to use the Stoner & Lowery code as a model, and then supplement that code with the sexual harassment and sexual assault language offered in the presentation.

One particular part of the proposed code that I took exception to was the inclusion of what essentially amounts to a six month statute of limitations. Given our need as educators to respond to delayed reports, and knowing how rape trauma syndrome often handicaps a person’s ability to manage a response to an assault, I am concerned that such a seemingly arbitrary amount of time was applied. Why six months? Why not a year? Time prohibited us from being able to pursue this issue further, but it is one that gives me cause for concern.

Overall I thought it was a good webinar, and the presenters were well-versed in the material. Even campuses who handle sexual misconduct complaints well have fertile ground for continued discussion as a result of the “Dear Colleague” letter, and it will be interesting to see how campus practices evolve in the months and years ahead.