Apr 292014

us-whitehouse-logoAs the media is widely reporting this morning, the White House has issued its anticipated report on campus sexual assault. Entitled, “Not Alone”, the 20 page report addresses the need for campus climate surveys, engaging men in the prevention of sexual assault, developing effective responses when an assault is reported, and improving transparency and enforcement. For convenience, I have linked the report here.

Just as importantly, the Office for Civil Rights has also released its long awaited set of guidelines in response to many questions raised in the wake of the 2011 Dear Colleague Letter. This is a far more fascinating read, as many practical questions directed to OCR during the past three years have received either mixed answers, or resulted only in verbal guidance. This 46 page document (linked here) addresses very practical and immediate questions on school obligations to respond, students protected by Title IX, procedural requirements, responsible employees and reporting, confidentiality, investigations and hearings, interim measures, remedies and notice of outcome, appeals, and several other topics.

Obviously, many of us will now spend weeks scouring these documents to look for ways to make improvements to our processes. The reports come in the wake of Missouri Senator Claire McCaskill’s issuance of a survey to 350 college and university presidents to determine how schools handle rapes and sexual assault on campus. McCaskill indicated she is focusing in particular on how those crimes are reported and investigated and how students are notified about the services available to them.

I have only given each document one reading so far, but my initial reaction is that both documents can be of great value to colleges and universities. In particular, I was glad to see a number of very specific situations addressed in the OCR guidelines, and expect OCR’s many concrete answers to be of value to policy makers and practitioners alike. I will post with more details once I have read them again and can spare some writing time.

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Feb 212014

White HouseAs has been well publicized, President Barack Obama recently established a White House Task Force to Protect Students from Sexual Assault. The overarching goals of this group, by order of the President, are:

(i) providing examples of instructions, policies, and protocols for institutions, including: rape and sexual assault policies; prevention programs; crisis intervention and advocacy services; complaint and grievance procedures; investigation protocols; adjudicatory procedures; disciplinary sanctions; and training and orientation modules for students, staff, and faculty;

(ii) measuring the success of prevention and response efforts at institutions, whether through compliance with individual policies or through broader assessments of campus climate, attitudes and safety, and providing the public with this information;

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Feb 202014

FirePart Two: Deceitful Hysteria Continues Around Campus Sexual Assault

I am going to begin part two of this article with a personal disclosure. My politics are that of a liberal libertarian, where I believe in social safety nets, I oppose unfair income divides that are rooted in social injustice and corporate welfare, and I believe strongly in personal privacy, being of the opinion that government has no business in the bedrooms of its citizens or taking away choices involving the human body, most notably in the area of reproductive rights. I also believe in science over creationism, believe that climate change is real and strongly influenced by human activity, and believe most fiercely in the separation of church and state. By basis of comparison, my politics are very similar to those of Mahatma Gandhi, Noam Chomsky, Nelson Mandela, and the Dalai Lama. Yep, I’m a lefty.

I say this not to promote my personal point of view, but instead to be genuine and transparent about the lens through which I view the world. Further, I respect that other people view the world differently and I do not claim that other views are inferior, no matter how much I believe in my own perspective. However, the basis for this respect rests on a respectful articulation of one’s point of view, and utilizing objective and demonstrable facts, rather than altering facts to meet one’s point of view. At the very least, people making arguments who are simply relying on their opinion should be clear that they are speaking an opinion, as opposed to articulating that opinion as ultimate truth. As a former conservative (believe it or not), I can actually understand the views of reasonable people on the right, and in some cases can either empathize or even agree with people who hold a more conservative perspective.

The Connection between FIRE and the Right Wing Media

So how did an article on Title IX morph into politics? In my view, FIRE has opened this door by virtue of the company it keeps.

In just the past three months, six pieces citing FIRE have made their way into publication at the Wall Street Journal, taking FIRE’s position as gospel that American colleges and universities have run amuck in depriving students of their free speech rights. It’s worse on Fox, where no less than 90 stories dating back to 2001 can be found of their website. By comparison, searches for FIRE on CNN and MSNBC find no current archive of stories explicitly involving FIRE. Similarly, the three major networks (ABC, CBS, and NBC) maintain a total of twelve stories involving FIRE over the entirety of the organization’s fifteen year existence.

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Feb 182014

FireLet’s start this article with an axiom.

Student conduct practitioners and student conduct boards are not asked, nor are they qualified, to determine if a student’s alleged actions constitute a crime as defined by federal, state, or local law. Further, student conduct practitioners and student conduct boards are not empowered to deprive a student of the rights of life, liberty, and property as defined in the Constitution of the United States of America or any of its Amendments.

When one understands and recognizes this basic starting point for a conversation involving college and university student conduct processes, it becomes difficult to understand the continued assault on these processes by the Foundation for Individual Rights in Education (FIRE), or by FIRE’s mouthpieces at the Wall Street Journal and Fox News. Or at least it would be difficult to understand, if FIRE and their allies were using actual logic supported by evidence. Of course they are not.

The truth is that FIRE has been far more about hysteria than fact all along, and the purpose of this two part article will be to deconstruct some of the “logic” being applied by FIRE, the WSJ, and by Fox News, and to offer my own opinion on what is really driving the current irrational assault on student conduct processes, as well as to offer guidance on responding to FIRE’s recent push to include attorneys in campus conduct proceedings.

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Aug 252013

I had been wanting to get back to blogging this week in the midst of working on several projects, but I wasn’t too motivated to make it a priority until I caught this little gem in the news. This comes to us from our friends at the Foundation for Individual Rights in Education (FIRE):

This week North Carolina Governor Pat McCrory signed a bill granting public university students in the state facing non-academic disciplinary charges the right to an attorney. The law, which is the first of its kind nationwide, ensures that students attending the state’s public colleges and universities possess rights similar to those already enjoyed by North Carolina’s K–12 students under state law. The Foundation for Individual Rights in Education (FIRE) worked with a bipartisan group of state legislators to enact the protection into law.

“Students across America are regularly tried in campus courts for serious offenses like theft, harassment, and even rape. Being labeled a felon and kicked out by your college carries serious, life-altering consequences. Because the stakes are so high, students should have the benefit of an attorney to ensure the hearing is conducted fairly and by the rules,” said FIRE Senior Vice President Robert Shibley. “We are immensely gratified that the legislature and governor of North Carolina have taken this critical step in giving students a fair chance for justice.”

Since I don’t personally know Robert Shibley, I will withhold any opinions I may have have formed about him by virtue of reading this story. And I would call Mr. Shibley’s comments uninformed, but I highly doubt that Mr. Shibley is uninformed. Therefore, I can only surmise that Mr. Shibley’s comments are intentionally deceptive, and that he has pulled a fast one on state politicians in North Carolina. Given some of the other interesting pieces of legislation that have come out of the Tar Heel state (see the recent pieces of legislation on voting restrictions [worst voter suppression law in the nation], ending Sharia law [talk about a solution without a problem], and allowing the concealed carry of weapons in bars [because that couldn’t possibly go wrong]), I can’t claim that it is hard to mislead that state’s politicians, especially when they seem to want to be misled. So let me take a moment, albeit after the fact, to offer a lesson in higher education and the law, that legislators in North Carolina either missed, ignored, or were deprived of.

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May 172011

From Rick:

First, I want to thank all of the people who either left comments on my last entry or who took the time to write me kind words. “OCR versus the One-Trick Pony” and my other DCL entries generated a lot more traffic and feedback than I expected, further reinforcing my belief that educators see this as a very important discussion.

Beyond the DCL letter being an important point of discussion, it is also becoming clear that FIRE is being exposed as an organization with a political agenda and as an organization that is either unable or unwilling to take a reasoned position in order to promote collegial discourse. There is nothing collegial about FIRE, and their alarmist hyperbole about grand conspiracies that lack evidence reveals their true nature. Last week’s continued assault on the preponderance test is an excellent example of projecting hysteria over facts, and served as fodder for a close friend and colleague, Dan Kast, to write a response which will appear in detail in an article in the Summer 2011 issue of the Journal of Campus Safety & Student Development. I have had an opportunity to preview it and promise that people will not be disappointed with Dan’s reasoned but pointed response.

Like myself, Dan also had some strong reactions to FIRE’s hyperbole and took specific aim at a separate article written by Samantha Harris, FIRE’s Director of Speech Code Research. I won’t talk much about Dan’s response, since he has been kind enough to forward it to me to share via this blog. Suffice it to say that I enjoyed this piece immensely, and once again find Dan’s logic to be solid and his argument pointed. Enjoy the read!

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May 132011


In a few bright, shining moments FIRE has been the champion of those who both deserved and needed it, and that is not a bad thing. But the continued vilification of higher education as a collective is unwelcome, unfounded, and wholly unnecessary.

I wasn’t planning to have any one particular topic dominate this blog for any period of time, but it looks like the OCR Dear Colleague Letter (DCL) is doing just that, and for good reason. Although I don’t know anyone who works at OCR, I can only imagine that they would be thrilled to know that the conversation within the profession regarding the DCL is raging fast and furious on the profession’s leading listserv among student conduct practitioners. As a member of the Association for Student Conduct Administration (ASCA), I have been a member of this list for many years (even running the group for a significant stretch of time) and I have been closely following the conversations of my colleagues.

Background and initial reactions

My overall impression is that most practitioners that I have encountered understand that there is not a consistently level playing field for aggrieved parties (otherwise known as “victims”) in sexual misconduct cases, and therefore support the stance taken by OCR. But there are those who believe that OCR is advocating too strongly for these people, and that it is somehow a zero-sum game that means that the rights of accused students are being violated or abridged in order to create a responsive environment for the aggrieved party. My response has been very simple; we have at least fifty years of case law (dating back to Dixon v. Alabama, 1961) which has instructed colleges and universities on how to manage conduct processes and protect the rights of the accused student. But with the exception of a few forward-thinking programs, those same rights are rarely granted to the person bringing the complaint in sexual misconduct cases. While many institutions across the United States have done their best to accommodate aggrieved parties, other institutions have not, and a culture has been created for many aggrieved parties (the overwhelming majority of whom are women) where reporting, investigating, and bringing these cases through our conduct processes has not been a priority. In 2010 this culminated in the publication of an investigation by the Center for Public Integrity, where a review of many campus conduct processes entitled, “Sexual Assault on Campus: A frustrating search for justice” was very critical of numerous conduct systems who failed to adequately address these cases. According to the CPI website, “The Center interviewed 50 experts familiar with the college disciplinary process — student affairs administrators, conduct hearing officers, assault services directors, and victim advocates. The inquiry included a review of records in select cases, and examinations of 10 years’ worth of complaints filed against institutions with the Education Department under Title IX and the Clery Act, as well as a survey of 152 crisis services programs and clinics on or near college campuses. The Center also interviewed 33 women who reported being sexually assaulted by other students.” Continue reading »

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.


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Apr 042011

The Office for Civil Rights (OCR) has issued a “Dear Colleague” letter to colleges and universities regarding the issue of responding to claims of sexual violence. The letter can be accessed at the NCHERM website, and is worth a read by anyone working in higher education. (Update: The letter is now posted as a pdf to the USDOE website)

It is no real surprise to me that this letter was released to the media prior to actually being presented to the higher education community. As one colleague pointed out on Twitter, OCR is likely still reacting to criticism that arose from the study done by the Center for Public Integrity on college and university responses to allegations of sexual assault. Frequent visitors to this site know that I was one of the people interviewed for this study, and I also was fortunate enough to appear on NPR’s Talk of the Nation with Kristen Lombardi, CPI’s lead investigative reporter for this study.

My perspective when being interviewed is the same one that I have now. It is my genuine belief that most colleges and universities do the best job that they possibly can responding to allegations of sexual misconduct, and do so with staff that have proper training and experience. This is my experience in the institutions that I have worked at, in my continual conversations with colleagues over the years, and in my review of college and university processes. Having said that I am known for making the rather blunt comment that there are just enough people in our profession not doing the right thing to give our entire profession the proverbial black eye. Thus, when Ms. Lombardi shared with me some of the stories that she had investigated, I was horrified. How is it that institutions of higher learning will not take such complaints seriously, not investigate them to their reasonable conclusion, or choose to put forth staff whose lack of training and/or experience makes them wholly unfit to manage such cases? I respect that there are two sides to the cases that Ms. Lombardi investigated, and that FERPA restrictions prevent institutions from sharing their own versions of the events, but some of the information that I have read is deeply troubling. Preferential treatment for student athletes. The strong-arming of victims attempting to come forward. The lack of published processes. Poorly trained investigators and/or hearing panels.  At some point, no matter how many of us are doing the right things the right ways, our work is undone by those who are unable or unwilling to provide fairness and equity to all students in our conduct and grievance processes. That’s exactly what invites governmental intervention through legislation, and in some cases through strongly worded statements such as the “Dear Colleague” letter released today by OCR. While the manner in which the letter has been released is political, the fact of the matter is that the letter contains some very important points that college and university administrators must heed. Continue reading »

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