Campus Safety and Sexual Misconduct—Emerging Issues

November 14, 2017

Key Points

  1. Nothing announced in the recent U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter (“2017 DCL”) conflicts with the existing requirements of New York State Education Law 129-B (“Enough Is Enough”). New York State colleges and universities following the state campus safety law are not required to do anything at this time as a result of the new federal guidance.
  2. Phase I of statewide audits by the NYS Office of Campus Safety was largely a “paper review” by auditors intended to ensure institutions had the requisite policies and procedures mandated by Enough Is Enough. It is possible that an institution was fully compliant with the state law, but the auditors could not identify all of the requisite policies on paper. Institutions can demonstrate compliance in follow up discussions with auditors.
  3. In Phase II of the OCS audits, auditors will “pierce the veil” and more closely review the operations of specific campus programs. This process may involve school visits and other investigation. A school found compliant in Phase I may nonetheless face auditing in Phase II.
  4. Institutions are well-advised to carefully review their applicable sexual misconduct policies and procedures every time they are addressing an allegation to ensure that each requirement is followed. Documenting compliance with school policies, such as with a “checklist,” will serve as key evidence in any subsequent appeal or litigation.
  5. At the outset of a Title IX case, develop an investigation plan with your team, and revisit and reassess the plan throughout the investigation to ensure that no factual stone is left unturned. Regularly check to ensure your plan follows your school’s policies and procedures.
  6. When designing interim measures for the parties, campus safety officials are key partners as they will likely be charged with implementation and enforcement. Work closely with them to ensure practicability and optimum safety.
  7. Litigation trends show that courts are allowing Jane and John Doe sexual misconduct suits against institutions to proceed past motions to dismiss to costly discovery. Colleges and universities continue to have some success at the summary judgment phase, defending their actions short of a trial.
  8. If your institution faces public scrutiny over a campus sexual misconduct incident, resist getting drawn into the debate. Follow your established processes, review for improvements, and strive for as much transparency as possible if changes are made. Honor the confidentiality of the parties at all times, even when the parties themselves disclose details.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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