Trustee Talk, Issue 13: Sexual Misconduct Prevention on College Campuses

Question:

What should boards know and do about sexual misconduct prevention on their college campuses?

Disclaimer: This newsletter is offered for general informational purposes only. It is not offered as and does not constitute legal advice. The views and opinions expressed in this article are those of the author and they do not necessarily reflect the official policy or position of the association.

 

Answer: 

In fulfilling their fiduciary responsibilities for the safety and well-being of the college community, boards can become strong leaders in stemming the sexual violence crisis on college campuses by assuring that board policies and college practices on sexual harassment and misconduct are comprehensive and fully enforced. That goes for mandatory training for the constituents of the college community.

The #MeToo movement is not just a current public rallying cry against sexual harassment and misconduct in the workplace and in our colleges; it is also arguably the result of years of societal neglect and avoidance. Estimates of sexual violence within the baccalaureate environment run as high as one third of female students by the time they are seniors (Finley & Corty, 1993), most of these assaults not officially reported.  On-campus housing increases risk. With 28 % of public community colleges having on-campus housing (2018 Fast Facts, AACC) and this population likely to grow, the risk of students being sexually assaulted within the collegiate environment increases. Through clear, bold and precise college policies, college boards of trustees now must confront their fiduciary responsibilities to protect the men and women in their college communities from sexual harassment and assault. 

According to the Department of Justice (DOJ) Office on Violence Against Women, violence against women offenses on and off campus are up 9.5% from a reported increase in 2016 of 85.4% (Public Insight, April 27, 2018). Higher education leaders have the responsibility to review and report cases of sexual assault and harassment on their campuses (Serio, April 2018). For some institutions, culture change is needed, and boards can lead the way.  The authority and scope of Title IX must be a priority to allow boards to provide the courage for the campus community, faculty, staff, and students alike, to report inappropriate behaviors.

A top-tier policy issue

In this decade, sexual assault has become top-tier policy issue for all colleges and universities. After President Obama commissioned a White House Task Force to Protect Students from Sexual Assault in April 2014, in 2015 alone, 28 states introduced legislation concerning campus sexual violence. (Education Commission of the States, Dec 2015). 

While no official rate of sexual assaults solely for community and technical colleges is currently widely available, in 2018, as the reporting of misconduct, rapes and assaults increases, leaders and trustees in higher education can no longer afford to look the other way, to allow offenders to return to campus to reoffend, or to support victims minimally, behaviors that have been documented previously in The Atlantic and The Huffington Post, among many other publications. (See details in References listed below.)  Not providing substantial support to victims and not enforcing due process can cost colleges both their reputations and loss of leadership and often unwelcome federal oversight. Boards must be informed about what is happening on their campuses. Zero tolerance is the standard that college presidents and Title IX seeks.

Comprehensive board policies on sexual misconduct

Foremost, with assistance of counsel, the Board should develop clear and comprehensive policies that promote zero tolerance of sexual misconduct either by students or by staff. Survivors of such violence should easily find where to go to report and where to get immediate assistance. The existence of explicit sexual harassment and assault or misconduct policies communicates that a college will not tolerate acts of sexual violence and does not want its students exposed to the detrimental health effects that such violence causes (Vladitiu, Martin, & Macy, 2011). 

With assistance of counsel, the policies must be simple for survivors to connect to on or off campus counseling. Studies have shown that counseling can make a significant impact on the well-being of survivors of sexual violence (Westmarland & Alderson, 2013).  Moreover, students need to be able to receive essential physical and mental health services that can help aid recovery to a healthy mental status after an assault. Specific language and definitions to use for prohibited conduct, for reporting and confidentially disclosing sexual violence, for interim and supportive measures to protect students following an allegation and for the Title IX Coordinator’ Role are available on the DOJ NotAlone.gov site.  

Checklist available for reviewing college policies

A Checklist for Campus Sexual Misconduct Policies is available on the resources section of the Department of Justice Not Alone.gov website for colleges to reference as they review their sexual assault/misconduct policies. It delineates elements particularly important for institutions to consider when drafting these policies.  (See sidebar.) According to the 2014 White House Task Force, sexual harassment polices tend to focus on the “threat of violence” and differ from a sexual assault or sexual misconduct policy. Some colleges keep the two policies separate.

A review of sexual assault and reporting policies on 10 university campuses in the U.S. (Streng and Kamimura, 2015) also warns colleges about having a generalized sexual misconduct policy for an entire multi-campus or multi-college system rather than an individual policy for each institution. Some large districts should make sure that each campus location has clear and specific procedures and go-to personnel identified. Examples of some specific community college policies will be discussed in this article, and others are included in the list of resources attached to this Trustee Talk.

Discuss sexual misconduct policy openly

Many see sexual misconduct as a public-health issue and suggest that it is helpful for colleges to share best practices and expand the sexual misconduct conversations.  With counsel present, Board policy discussions can make a difference on a campus. As a corporate body that acts as a unit, to represent the common good, boards should debate and discuss issues such as sexual assault in public. Boards set the tone for the entire system or institution. They define policy directions for college operations, which open debate about all perspectives and nuances regarding sexual behaviors on the campus could be made clear. Their sexual assault policies should ensure fair treatment of employees and students, and the board could stand as a role model that leads as a thoughtful, educated and principled team.

Publicize the policy and mandate training

While some Board policies may not need widespread attention, this one does. It should be widely known by the entire college community and public what zero tolerance means for both students and for staff. In his YouTube video speaking out against campus sexual assault, president of the Community College of Allegheny County (CCAC) in Pittsburgh, PA, Dr. Quintin Bullock affirms zero tolerance for domestic violence and sexual assault and encourages victims to come forward. “CCAC has put in place policies to ensure that the entire campus is aware, engaged and supportive so that we are offering a safe environment for students.”  Regular scheduled trainings are part of this engagement.

Look at your website

Public statements like this can reassure college and community members. As part of a prevention program, the board could work with the administration and student leaders and counsel to develop a public education campaign around sexual misconduct. Researchers found that most college websites include only necessary information about sexual assault and that “the content is difficult to locate and lacking in information in additional resources that could assist victims…or help in prevention efforts.”  Twelve percent of colleges did not include information about sexual assault anywhere on their websites, according to the study. Boards may wish to review their own college’s websites to assess the accessibility of information for victims and legal ramifications and penalties for potential perpetrators.

How do boards prepare?

An annual conversation about sexual assault and harassment with the college’s attorney may be a wise review for boards. Every board member should have a copy of Know Your Rights: Title IX Requires Your School to Address Sexual Violence and should make sure that such a document is clearly available to if not given out to each and every student and staff member. The Office of Civil Rights (OCR) also provides a Q&A on Campus Sexual Misconduct that provides guidance on schools’ responsibility to address sexual misconduct and decision making as to disciplinary action.

At the very least, board members must be well informed about Title IX, sexual harassment and sexual assault issues, particularly of any incidents at their institutions. Dan Phelan, president of Jackson College, Mich., keeps his board aware of any serious allegation that occurs on the campus at the time it happens and of any possible litigation, complaints, etc. “One of our trustees is a former chief of police, so his knowledge and expertise has been incredibly helpful. We all know that the safety and security of all of our employees and students is our responsibility.”  

Sexual Harassment and Misconduct Training

Annual training should be on the president’s checklist to make sure faculty, staff, and student training in this area is comprehensive at every community college. According to Ira M. Shepard, ACCT’s general counsel, “Some states actually require such training. It is an important aspect in designing a cure, and it is something all boards should insist on and monitor. Trustees should even be in a position to occasionally suggest improvements or that administrators make sure they are using the latest in [sexual] harassment and violence training techniques and programs.”

Like the students and staff, boards require training, and a multitude of resources is available to them. Foremost, the Department of Justice websites mentioned above provide resources including Addressing Gender-Based Violence on College Campuses: Guide to a Comprehensive Model, a brief outline of which is in the resources section, below. The Office on Violence Against Women (OVW) also offers grants for institutions planning to develop campus orientation programs.

In addition, a few articles researched for this project mentioned The Hunting Ground, a documentary film about college rape survivors that is sometimes used in campus training. The film provides a realistic view of the serious health threat victims face and a historical view of the past ways that some educational institutions have mistreated victims in contrast to the “cultural entitlement” treatment for offenders as cited in the film and other articles. 

Highlights of The Hunting Ground

 (documentary, 2015, available on Netflix)

  • 16% of women on college campuses are assaulted.
  • 88% do not report
  • 2-8% false reports
  • Less than 8% of men in college commit 90% of assaults.
  • Repeat offenders commit 6 or more assaults.
  • 26% of assaults are reported to police; of these only 20% are prosecuted after a long period of time
  • Offender penalties: warnings, $75, assigned papers or community service; expulsions are extremely rare.
  • Most offenders are allowed to return to campus.
  • Student athletes commit 19% of sexual assaults.
  • Signs: SAE = sexual assault expected
  • Colleges/Universities: “Effort to silence the problem”
  • Colleges/Universities: “Complicit in abuse of victims”
  • 100 colleges & universities are under investigation (2015)
  • Predict 100,000 more rapes will occur next year.
  • SeeActStop.org

Underreported assaults

Title IX, the Education Amendments of 1972, was designed to prohibit discrimination on the basis of sex and requires colleges not only to have police in place to prevent and protect students against sexual violence but also to respond promptly to such violence. Despite such legal protections, most instances of sexual assault and rapes go underreported with only one in five instances being officially reported. (Cantor et al, 2015) Often, campus climate surveys have been used to understand the scope of the situation.

Reasons vary about the underreporting of sexual violence: being unclear on where to report an assault to campus officials, issues of confidentiality, fear of not being believed, of being re-victimized, and if they know their perpetrator.   There’s also a huge backlog of rape kits—some decades old—that have never been tested (and therefore, allegations of sexual assaults never being tried).

With the updating of Title IX by the Obama administration to require that colleges investigate sexual assault claims, colleges are now under scrutiny for handling sexual assault complaints (Culture of Consent, 2016). While students or staff members should feel safe in reporting harassment or assault, appropriate legal safeguards for evidence and truth must be affirmed. False accusations or reporting must be handled with extreme care; those cases that are not often end in legal entanglements and make bad press for the college.

Mandatory and extensive professional development

In preparation for this issue, ACCT queried a handful of community college presidents and trustees from around the country.  When asked about how often training was implemented for faculty, staff and students on this topic, , a long-time trustee from Northern Wyoming Community College District (NWCCD), Walter Wragge, reported that in addition to the Student Code of Conduct, they also have a sexual misconduct procedure which applies to faculty, staff and students and provides reporting guidance

At NWCCD, sexual misconduct training is required for all students and is incorporated in student orientation programs. Wragge notes, “We have an online course that students take before they begin classes. The course is part of a larger suite of educational resources that we use for faculty, staff and students to reduce risk as it relates to sexual misconduct and harassment as well as alcohol and other drugs.” Here is a link to these resources:  https://home.campusclarity.com/.

Wragge also noted that NWCCD also provides annual in-person training for students in leadership roles or supervisory student positions and all students athletes and their coaches. Faculty and staff are provided information on reporting sexual harassment/misconduct in a variety of ways: 

  • annual portal posts to remind staff of access to resources and responsibilities to report;
  • sexual harassment/misconduct online training course every other year and annually for those in supervisory roles;
  • overview for faculty and adjuncts at the annual fall in-service; and
  • more in-depth training for several staff and faculty groups – those serving as sponsors for study experiences outside the United States, coaches, staff working with students in campus housing.    

Moreover, he adds that more than 25 staff members who have participated in Title IX investigation or adjudication training in the past three years. These trainings are provided by risk management/law firms that specialize in Title IX and sexual misconduct training and consulting.  “As required by the U.S. Department of Education, we keep a record of training participation in our Title IX Coordinator’s Office.”

Training and Compliance 

According to President Dan Phelan, Jackson College offers a combination of trainings. “We provide an in-person and on-line training for campus security a couple of times a year.   All administrators receive annual training.  We provide forums, speakers and movies to train, provoke conversation amongst our students, but particularly our housing students. Our resident assistants, desk assistants and security at the front desk of housing are all trained as well as how to respond. We also send our HR professionals to conferences for additional training and expertise on how to investigate and keep our organization compliant.” (See Michigan legislation in Resources below.)

In addition to clear, well-publicized policies, boards can encourage the administration to create partnerships with health and enforcement agencies, rape crisis centers, counseling professionals, etc.  Sexual assault is primarily a health issue for students (predominantly females) and a fiduciary responsibility for boards. Colleges and boards must ensure their safety and health and ensure proper learning environments for all students.

Following are guidelines for boards to consider.

  1. First and foremost, make sure the president and college administration stay well-informed about enactment of laws and new guidelines by your state legislature and federal government. Don’t be caught off guard. Work with your board’s counsel.
  2. Review your sexual misconduct policies with counsel. Publicize the policies well, and encourage annual mandatory training for staff and students, particularly at orientation time.
  3. Be informed about what is happening on your campus. Encourage the administration to conduct appropriate campus climate surveys. DOJ provides guidelines and model questions for such surveys.
  4. Ask your administration to promote campus dialogue from all constituents—students, staff, faculty, and administrators and the community. Build partnerships within the community.  
  5. The administration should assure the board that sexual misconduct resources are well-advertised on campus and on the college website. 
  6. Discuss financial implications and assess risk and manage threats. There are different viewpoints about the costs of implementing appropriate sexual assault services. Make sure the administration is well informed and that you work closely with counsel.

Governing boards and administrations have a responsibility to safeguard their institutions. It is important to ensure the administration reviews and assesses college sexual misconduct policies for consistency and compliance with federal and state laws. 

Consent must be informed, voluntary, and mutual, and can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent.

Silence or absence of resistance does not imply consent. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.

If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature, or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption that meets this standard or being asleep or unconscious. (DOJ)

Not Alone: Protecting Students From Sexual Assault

U.S. Department of Justice

Sample community college policies

These are good examples, but each institution should develop its own policies carefully and with the assistance of counsel.

  • Prince George’s Community College, MD

http://www.pgcc.edu/uploadedFiles/Pages/Campus_Info/campus_police/12-19-14%20PGCC%20Discrimination%20Harrassment%20and%20Sexual%20Misconduct%20Policy%20(to%20MHEC)%20-%20Final.pdf

  • Jackson College, MI

https://www.jccmi.edu/wp-content/uploads/1717.pdf

  • North Central State College, OH links:

http://www.ncstatecollege.edu/cms/media/PDF/policies/15-03.pdf

http://www.ncstatecollege.edu/cms/media/PDF/policies/15-031.pdf

http://www.ncstatecollege.edu/cms/media/PDF/policies/04-20.pdf

http://www.ncstatecollege.edu/cms/media/PDF/policies/15-01.pdf (see paragraphs, (E) (14-19)

  • Northern Wyoming Community College District

http://www.sheridan.edu/wp-content/uploads/2016/02/Student-Code-of-Conduct.pdf

http://www.sheridan.edu/wp-content/uploads/2016/02/sexual-misconduct-procedure.pdf

Resources available to colleges:

Addressing Gender- Based Violence on College Campuses: Guide to a Comprehensive Model

Provides a Comprehensive Campus Model with 3 goals:

  • Goal 1: Broad campus and community engagement’
  • Goal 2: Effective Intervention   This goal encompasses four elements:
    1. providing survivor-centered victim services and advocacy;
    2. providing other support services;
    3. ensuring a trauma-informed and effective law enforcement response; and
    4. 4) creating and maintaining fair, equitable disciplinary processes that hold offenders accountable.
  • Goal 3: The reduction of gender-based violence

Contains more resources and tools for campus and community engagement

The Atlantic,  The Uncomfortable Truth About Campus rape Policy, by Emily Yoffe, September 2017.

Building Partnerships Among Law Enforcement Agencies, Colleges and Universities: Developing a Memorandum of Understanding to Prevent and Respond Effectively to Sexual Assaults at Colleges and Universities

  • Provides sample language and sample MOUs

Building Partnerships with Local Rape Crisis Centers: Developing a Memorandum of Understanding

Campus Climate Survey Validation Study, Final Technical Report, Bureau of Justice Statistics Research and Development Series, January 2016.

Cantor, D., Fisher, B., et al, (2015) Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, Rockville, MD.

Culture of Consent, Office of Sexual Assault Prevention & Response.

Huffington Post, How Colleges Let Sexual Predators Slip Away to Other Schools, Tyler Kingkade, December, 2017.

The Hunting Ground, documentary film, 2015. Trailer. Available on Netflix.

Necessary But Not Sufficient: Sexual Assault Information on College and University Websites, Emily Lund and Katie B Thomas, Psychology of Women Quarterly, first published August 2015.

Not Alone: The First report of the White House Task Force to Protect Students From Sexual Assault, April 2014.

NotAlone.gov, The U.S. Department of Justice.

Office on Violence Against Women, The U.S. Department of Justice.

Preventing and Addressing Campus Sexual Misconduct: A Guide for University and College Presidents, Chancellors, and Senior Administrators, White House Task Force to Protect Students from Sexual Assault, January 2017.

Q&A on Campus Sexual Misconduct, US Department of Education, Office for Civil Rights, September 2017.

Washington Post,  A Wrenching Dilemma, by Jessica Contrera, February, 2018.    

Westmarland, Nicole and Sue Alderson: The Health, Mental Health, and Well-Being Benefits of Rape Crisis Counseling, Journal of Interpersonal Violence, August 2013.

Center for Changing Our Campus Culture

  • The Center provides the latest research, sample campus policies, protocols, best practices and information on how to access training opportunities and technical assistance.
  • Provides a Sexual Assault Kit Initiative (SAKI) with pre-packaged resource sets from evidence tracking to victim care to prosecution.   Funded by the Bureau of Justice Assistance.
  • Student Action Packet on Campus Climate Surveys on sexual assault. 
  • Transcript Disciplinary Notations Guidance June 2017  for guidance on transcription recommendations, and alternatives, recommended disciplinary notations verbiage, disclosure timeline, etc. and recommended Framework for Institutional Policies and Procedures

Michigan Legislative Resources (submitted by Dr. Dan Phelan, President, Jackson College)

Michigan is seeing some very aggressive legislation, on the heels of the MSU’s Larry Nasser, that may be formalized:

Senate Bill 877 would “specify that a governmental agency would not be immune from tort liability for sexual misconduct that a member, officer, employee, or agent of the governmental agency engaged in while employed by or acting on behalf of the agency if it were negligent in hiring, supervising, or training the individual, or if the agency knew or should have known of the sexual misconduct and failed to report it to a law enforcement agency.” Thus, the agency would not be immune if it “should have known” of the sexual misconduct. It is one thing to say the agency should have known about a pothole that is in the middle of the street for everyone to see and another to say the agency should have known about sexual misconduct that by its very nature is carried out in secret. The most recent MIPRIMA seminar in March featured an excellent speaker, Elizabeth Smith from the Washtenaw Child Advocacy Center who explained how predators “groom” their victims and what to watch for

Senate Bill 876 appears to retroactively extend the reporting period for this type of case. It appears that this applies retroactively to January 1, 1997. Those concerned about Public Risk Management will want to read these bills and probably consult with their chosen counsel for full review of the implications.

House Bill 5488: Legal Fees Incurred by Public Universities, Colleges and Community Colleges

House Bill 5488 was introduced on January 30, 2018 by State Rep. Jim Runestad, R-White Lake. The Bill would amend the State School Aid Act, using the legislature’s appropriations authority to require public universities, colleges, and community colleges that receive funding from the state school aid fund to annually report “all costs … in connection with any civil or criminal case, filed or anticipated” against the entity or any of its staff to the senate and house appropriations subcommittees on community colleges and the senate and house oversight committees. In addition to attorney fees and other costs, such as those incurred during MSU’s internal Nassar investigations, entities would also be required to report the amounts of court judgments or settlements against the school.

House Bill 5405: Settlement of Sexual Harassment Lawsuits

State Rep. Gary Glenn, R-Williams Township, introduced a bill on January 11, 2018, that would prohibit the use of taxpayer dollars to settle sexual harassment lawsuits against elected state officials. Specifically, the Bill proposes that: “A public entity shall not make an expenditure of public funds to settle a claim or action involving sexual harassment in which a public official is the alleged perpetrator or defendant.”

House Bill 5397: Settlements Involving Gross Negligence and Intentional Misconduct

On January 11, 2018, Representative Lucido introduced House Bill 5397, which is intended to prohibit the expenditure of state and local funds on the settlement of certain claims and actions or on certain judgments. The Bill would ban tax dollars from being used to settle lawsuits involving gross negligence, intentional misconduct, or criminal behavior by elected officials. Additionally, the Bill requires that, if a court finds that a public official was grossly negligent or engaged in intentional misconduct, or the public official is convicted of a crime, the public official shall, within 30 days after the finding or conviction becomes final, reimburse the public entity for any public funds that were expended in the defense of the public official.

Do YOU have a Question for us? Email your question to: Norma Goldstein