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 252011

Long before I arrived at his presentation tonight, I knew that an evening with Edward James Olmos was going to be rewarding. After all, here is my favorite actor from one of my favorite shows (Battlestar Galactica) who is a social activist coming to our campus to speak about one of my favorite topics (social justice). No matter what my expectations however, they were far surpassed by the man who took the stage tonight and shared his gifts and talent. In all it turned out to be two hours of my life that could not have been better spent anywhere else.

Leaving the house lights on so that he could see each of us, Olmos began by talking about his own identity, or more aptly identities. Thanks to my education I have long viewed race as an imperfect social construct that creates more problems than it settles, but it took Olmos to really bring this to life for me and help me appreciate the destructive power of racial identity. Olmos reflected on his identity as a Chicano; half-Mexican and half-Spanish, born in the United States. He talked about the power of an identity that was five hundred years old, commenting that he would not be who he was without this mixture of cultures, and the strength that he draws from both. But before he could be a Chicano, European or a Mexican, he had to be indigenous to the Americas, a history of forty thousand years. And even before that, he had to be Asian for many thousands of years before those people crossed the Bering Strait into North America. And of course before that, he had his roots in Africa, as do we all.

The point is an obvious but powerful one; all of humanity comes from Africa, and the reason we are “different” from one another now is because we took different migratory routes off of our original continent. What Olmos wanted us to remember was that we have more in common than we have separating us, a fact too often forgotten. He drew upon Battlestar Galactica to see how one amazing science fiction series dared to challenge us by making us think about what it means to be human, particularly when we might identify more with the machine-race Cylons than we do with humanity. And it was that show’s grappling with issues of human rights, suicide bombers, terrorism, reconciliation, and right to life versus right to choose that ultimately resulted in the cast and creators of Battlestar being invited to the United Nations to discuss those very same issues in detail. Continue reading »

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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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