URMIA Matters

Episode 28: Title IX Review & Removal of the Clery Act Handbook

October 21, 2020 Kathy Hargis & Joe Storch Season 1 Episode 28
URMIA Matters
Episode 28: Title IX Review & Removal of the Clery Act Handbook
URMIA Matters
Episode 28: Title IX Review & Removal of the Clery Act Handbook
Oct 21, 2020 Season 1 Episode 28
Kathy Hargis & Joe Storch

Listen in with guest host Kathy Hargis, associate vice president of risk management & compliance at Lipscomb University, as she chats with Joe Storch, associate counsel in the SUNY Office of General Counsel and chair of the Student Affairs Practice Group, about what higher education risk managers need to know about updates to Title IX and the lack of a Clery Act Handbook as explained in this Inside Higher Ed  article.

Show Notes [member login required]

Show Notes Transcript

Listen in with guest host Kathy Hargis, associate vice president of risk management & compliance at Lipscomb University, as she chats with Joe Storch, associate counsel in the SUNY Office of General Counsel and chair of the Student Affairs Practice Group, about what higher education risk managers need to know about updates to Title IX and the lack of a Clery Act Handbook as explained in this Inside Higher Ed  article.

Show Notes [member login required]

Kathy: Hello everyone and this is Kathy Hargis and welcome to URMIAmatters. I am your moderator today for this session and my role here, I am the Associate Vice President for Risk Management and Compliance at Lipscomb University located in Nashville, Tennessee. I’ve been very much involved with URMIA over the years and serving as the secretary for URMIA for a number of years and then the president in 2016, so URMIA is very near and dear to my heart. We have a very, very special guest with us today, Joe Storch. I don’t think that Joe needs a lot of introductions, those of us who have been around for a while are thrilled to have Joe. Joe, I think that we go back a ways with our association with URMIA and I will say I like to brag and say that I am the person that brought Joe to URMIA back in 2012 as the chair of the international committee. I believe that we were looking for someone to host a webinar, I’ll look this up just to get it correctly, on the implications on the clery act & title IX in overseas and distance locations, and so we had you on I think at that time to host one of our webinars, which I will have to say was one of the most attended webinars we have had to date at URMIA, and then from then on to do regional conferences and our annual conferences so that legacy just kind of went on. So, Joe, welcome. I’ll let you kind of say a couple of words of introduction.

Joe: You know, Kathy, it’s so great to be here, it’s so great to see you again. I know folks are going to be listening, but we’re actually able to see each other through this and it’s just...I have such warm feelings for URMIA, I do remember that webinar. My mom actually logged in 250 times in order to boost numbers, so we were able to get our numbers really high. She had 3 different libraries putting in all their different computers, and we just had such a great time telling jokes and swapping stories at so many URMIA conferences and I just have the greatest feelings for Jenny and the team and for you and the folks there and you know I always tell the same joke- that most of risk management is about risk avoidance, but then you get to an URMIA conference and it’s all about risk creation.

Kathy: There you go.

Joe: So, it’s so great to be here. 

Kathy: Well, great. It is always an honor to have you at anything that we can and we appreciate, I know it’s a very busy time and you have a very busy schedule with all the many hats that you wear, so we are very very thankful and appreciative of you taking the time to share your knowledge with us today. We’re going to talk today, we’re doing a deep dive into title IX update, and we have, I’ve listened to a couple of your webinars with title IX this year. I have a little bit of an unusual… I always say I drew the short straw of having title IX kind of under our risk management portfolio here at Lipscomb, which is a little bit unusual but I think it also is interesting that it gives me I think a different perspective into title IX and kind of the overlapping world sometimes of risk and title IX. In the midst of the pandemic and all the craziness that’s going on, we had that little thing of the new regs that hit this year, so I wanted to start us off today by just saying could you just give us maybe a 50,000 foot overview of these regs? Kind of what they are, the big changes and how they are impacting higher education.

Joe: Yeah, absolutely. So here we were in March closing down our campuses, going to remote. In New York we had a horrific month of March. Of course we had significant loss of life and injury, illness across our state, we had major budget challenges and we thought to ourselves “well, they couldn’t possibly issue the title IX final rule into this absolute mailstrom, but indeed on May 6th we had an announcement from the secretary of education that they would be issuing a final rule in title IX under consideration for a couple of years and it would be effective 100 days later and that final rule is no joke 2,037 pages, so it is longer than the old testament, it is longer than any whatever long book you use as your long book comparison, this is longer than that. And those of us like me who read through it cover to cover, of course as a higher ed lawyer, we start at the back, right so you start at what the regulations are and then you go back. There is a lot there and so you’ve got a lot of things that seem a bit clear from what we call the black letter, the actual text of the regs, and then when you get into the preamble, there’s kind of a lot going on. Now title IX has increased in the eyes of risk management folks for about a decade now, of course the department of education issued a 2011 dear colleague letter followed up in 2014 by a dear colleague Q&A, and many colleges really upped their work in title IX and added its staff and added training and seem to be moving in a direction, of course we had some changes to the clery act during that time and things seem to be rowing in the same direction. In 2017 the secretary of education indicated that the 2011 and 2014 letters would be withdrawn, they’ve since withdrawn every letter going back to the 1990s. Those were withdrawn and there would be regulations. The regulations do a couple of things. One, they reduce the jurisdiction of title IX.  A fair reading of the 2011 and 2014  and 2001 approach was that colleges should address incidents that are limiting the ability of their students to participate in campus activities and some of those incidents may, many of them occur on campus, but some occur off campus but have an impact on campus. The final rule reduces the jurisdiction to programs and activities generally on campus, not totally limited to on campus, but generally limited to on campus and it very much limited what crimes and violations are covered so gone were the days of the title VII severe or pervasive to a system where there were three types of title IX violations. The first is quid pro quo requests and harassment by employees and quid pro quo is of course this for that, so an employee or a faculty member says if you engage in this romantic or sexual relationship we’ll give you a better grade, a better employment or the like. Number two is incidents that are severe and pervasive and objectively offensive such that they basically bar access to education, which for those of you who have done any work in Title VII, then you know that that is very different and a higher bar, and the third is the VAWA crimes. The violence against women act, the amendments of 2013 added into consideration, domestic violence, dating violence and stalking to an updated sexual assault and any time those crimes occur within a program or activity they are now belt and suspenders counted under title IX. While at the same time the department of education reduced the jurisdiction of title IX, it added significant, market due process requirements that exceed any due process required by any state legislature required by congress, required by any court including the well known sixth circuit opinions Doe v. Baum, I know Kathy, you’re very familiar with, and so even more than that, this requires due process that in some ways exceeds the criminal justice process, in other ways it doesn’t. In some ways the department has required colleges to reduce the jurisdiction of title IX, while at the same time making it much much more difficult to have a finding, have an investigation and a finding of responsibility, meaning that marginally more people, and when I say marginally I mean this case would have been covered now it’s out, then the next case, keep going up the margins, are able to stay on campus where they can continue to offend. Now, just to close this out, if certain crimes or violations are not covered onto the title IX final rule then they can be covered under the VAWA amendment, clery, under your campus policy under state law, but a market, market change to the approach of title IX. 

Kathy: That is definitely true, I hear more and more and I look to you as an expert in this field for sure. They are like mini courts that colleges and universities are really being forced to uphold. It’s a very different kind of standard that we have here for that for sure. I know that a lot of the things that we’re seeing… What are some of the challenges that you're hearing from practitioners in the field with the view, with these new regs? Anything in particular that comes to mind? 

Joe: yeah, I’ll mention comments on both of the things you just said. One is that this is really unique to education and higher education. Imagine a regulation that came out from the department of labor saying that before Walmart wanted to take an employee off the store floor who was sexually harassing, they had to give them a hearing and cross examination, there’d be riots in the street. Imagine that that was applied to the New York Times or the Washington Post or the Drudge Report or whatever, it’s really unique to education and we don’t see that in all these other employment situations. The challenges, I think start with we’re trying to implement this during COVID-19, we are trying to implement this during the worst year of all of our lives, god willing this is the worst year of all of our lives and we never seen anything that even approaches this again, so doing the training is hard when you can’t get all the people together for a training. Putting together policies usually you would sit around a conference room. I’ve been to Lipscomb, I know you’ve got beautiful facilities, you’d all sit around, you’d say well what about this, put it up on the board let’s look at that, now we’re doing everything through zoom and webX, et cetera. Makes it much harder to develop the policies, the costs, there are some significant costs, many institutions don’t have sufficient staff to staff these, what you’re referring to as mini courts and I think that’s an apt description and just the complexity of it, and I think what that is resulting in is fewer students coming forward with disclosures. Now, it is very difficult to tease out how much of that is due to the final rule, how much of that is due to COVID, how much of that is due to students not being on campus, it is very difficult to do apples to apples comparisons but what we’re hearing from students is it is indeed a very complicated process to go through and many of them are not coming forward. We know that few people disclose sexual harassment, sexual and interpersonal violence the more limitations and blocks that we put in their path, the fewer of them are going to come forward and what’s worse- the impact is harder on our students of color, it’s harder on our students from marginalized groups, it’s harder on our students who are first generation students, it’s harder on our LGBTQIA+ students. They are impacted at a higher level and they have fewer resources and so are less likely to come forward, a real tragedy. 

Kathy: I agree to that, with what you said. It is I think going to be much more challenging, and I just think that a lot of the students who really would have come forward in the past are going to be very hesitant to do so, particularly once maybe they meet and understand the process better and what that is going to look like. It’s probably going to be a deterrent I think to moving forward with this at all, which is really, really unfortunate and goes to really the root of what I think title IX is about and what we were hoping that it would do. So we will see as we move forward, obviously there’s a small election coming up in November, I don’t know how that will impact things. We’ll see how that plays out and what that looks like going forward if there is a change at all, so that’s another story to be talked about at another date, but you mentioned something about, obviously with title IX  and clery particularly, the VAWA, there’s a lot of overlap there, and I think it’s important for risk managers to really understand both of these, the intersection, but of course last Friday there was some news that came out as far as clery is concerned, about that they withdrew the clery handbook, so as I look to you to be an expert definitely in this field as well, tell us about that, what you think and give us some of your professional wisdom on this.

Joe: Yeah, absolutely. The title IX and clery are often talked about together, but they’re very different. Title IX is a civil rights law, it’s about equity and access. The clery act is a consumer reporting law, it’s tell people what happened last year, two years ago and three years ago and they can be empowered to make decisions about their safety, and they’ve sort of grown together and grown apart and one of the things that the department had used to call it help institutions, call it require institutions unclear was a handbook. The handbook was first issued in 2005, updated in 2011, updated again in 2016, and it had grown to be hundreds of pages and examples and things that I agreed with, and things that I didn’t agree with. Last Friday, as you referenced, with no fanfare at all, no press release, no speech to an audience, the department withdrew the clery handbook, they rescinded the clery handbook and they replaced it with a 13 page appendix to the federal student aid handbook. Now you read the appendix you think there’s not that much to clery because unfortunately, and this is something I want to raise to risk managers, unfortunately the appendix doesn’t include a lot of things that are required by the statute and the regulations and maybe these were intentional, leaving things out, maybe they were accidental, but for me the appendix is an interesting document, but without the handbook we have to go back to the regulations. The department of education issues regulation under the higher education act using a negotiated rule-making process, they lasted in 2014 and 2015 after the VAWA amendments, the clery, and those regulations are laws, just like the title IX regulations have the force of law, the clery regulations have the force of law. Now, for risk managers, we got something good out of the handbook, which is, if you look at the handbook and you agreed with it at least you felt okay, right so I’m in a safe harbour because the department of education and subregulatory guidance has told me to do it this way, that’s the way I’m doing it. So if the department of education comes in for an audit and they say “why did you do it this way?” You say  well, look at page 17-3 and that’s where you told us so we felt like we had a safe harbour. Did that go away? From my point of view, the department of education interestingly rescinded the handbook but they didn’t repudiate it. In 2017 the department not only rescinded the 2011 and 2014 dear colleague letters, they repudiated it, they issued press releases, they had blog posts and tweets and all sorts of stuff saying that it is repudiated. Here, what they did was they said you know, we exceeded our authority when we issued this handbook, but we’re going to leave it up there if you want to reference it. In some ways, from a risk management standpoint that may be the best of both worlds. Now, if an institution does something and it agrees with the handbook it’s still a safe harbour, it’s still, when people say “well why did you do it that way?”  well, we’re still using this clery handbook rescinded, but not repudiated. If you want to divert from the clery handbook and you can justify it and you know it’s correct under the statute and the regulations, maybe you have a bit more flexibility. Unfortunately the clery act in recent years, a lot of the concentration has been around technical requirements, how are we reporting on the third night of an international program stay in this part of the hotel vs that part of the hotel and maybe missing out on some of the core things, Kathy, you and I have talked about over the years of how do we make our campuses safe because for those of you who have heard me speak at URMIA you know my favorite, the best thing to say is how do we avoid a risk management challenge? We don’t have the injury in the first place, and how do we not have the injury? It’s because we’ve protected our students, so for all of the time that our police officers are spending calling hotels in Croatia to get numbers, it is time that they’re not on a bicycle going around and doing community policing. There’s only so much time in the day. So, maybe just maybe we can have the best of both worlds, we can do our technical compliance while getting our safety officials out there to keep our students safe, which is really what we want to do.

Kathy: That’s such a great point to make and I wrote that down, rescinded, but I think that that is a great thing to take forward. I like the best of both worlds from a risk management perspective, you know that is very helpful. I do look at the clery handbook a lot, I mean it, as you said, there’s things in it that you like and things you don’t. It does have a lot of great examples of things that you can point to a little bit when you’re trying to explain it to others and get a better understanding but I think that is a very good takeaway for today, we’ll see. Do you expect anything more to be coming out anytime soon on that , do you think that’s the last we’ll hear or what are your thoughts?

Joe: Well, anyone who predicts this is the last we’ll hear from this department of education, it’s always a losing battle. You know, you reference, and again, we don’t know what’s going to happen in the federal election, we just know that there is one. I would anticipate that if the president is reelected we will see the title IX final rule stay on, we will see this regulatory approach to clery, we might see some additional guidance although the department has said we’re not going to be doing subregulatory guidance, we are going to do it through regulations. So, would they reopen regulations, maybe. Hard to see but it’s possible. If the president is not reelected and his democratic challenger is elected, I would anticipate there’s a decent possibility that we will see a restart looking at both title IX, looking at clery. Some of that might be done through the regulatory process, some of that might be done through a subregulatory process and depending on what happens with the house and senate, we might see new legislation, there are all sorts of legislative ideas out there from both parties from both houses. I’ve been privileged to get to work with some of that and I think there’s a lot of good ideas and good will among many, so we might see some real changes. I don’t think that any risk manager or any higher ed lawyer is going to find themselves bored in the area of civil rights and campus safety anytime soon. 

Kathy: That is very true. A lot of concern has been around that this will be opening the floodgates a bit more for litigation, which from a risk management and looking at our insurance as it sometimes will hopefully be responding to this under the SAM, sexual abuse and molestation coverage, obviously we’ve been seeing a lot of changes with this as the insurers are looking at this particular coverage. It has been something that has definitely shown up on the loss register a lot, so a lot of companies are obviously looking at ways of limiting coverage, reworking and revising the language around this coverage, and that’s something that from a risk profile standpoint, risk managers are looking at a lot as we go into 2021 and head into the renewal season, exactly what this coverage is going to look like from an insurance perspective, making sure that we get the best coverage, the best language that we can, so it’s definitely a lot of changes hitting at one time, and that on top of COVID can kind of create a real crisis of its own, so to speak.  

Joe: Yeah, indeed, and we’re already seeing litigation coming from the new title IX final rule, we’re only about a month and a half in and here the risk is really wrapped around. So the risk is from you not doing something for somebody,  the risk is when you do something, the risk comes from reporting individuals, victims, survivors, the risk comes from respondents, the department of education in their final rule added really significant, very technical, very detailed requirements and left a lot of doors open, especially for respondents litigation, but there is quite a bit of victim side litigation, and one of the sad things about our colleagues who do title IX work, almost all of whom, are great, warm, really deeply meaning, could make a lot of money, more money doing anything else is that it is very thankless in that the best ending to a title IX case is essentially everybody is unhappy, right. There is no, this is not a student affairs thing where we’re giving out awards and we’re making new programs and the students, you know with title IX you are trying to limit damage and you are trying to limit harm and our folks are so deeply committed and they do such an incredible job and we’re really grateful to them, but we see a lot of burnout because it is so hard and the wrap around attacks from all sides and nearly all cases, likely, like I said, sometimes you have one party who’s unhappy, often you have both parties that are unhappy and maybe that’s, you know, maybe that’s the best result because everybody is unhappy, but you very rarely will have a case where everybody is happy, unlike so many of the other things we do, and as risk managers we want to think about that, we want to think about how to not only reduce that risk but have our people, the risk of that turnover, having a restart and retrain and what can we do in order to encourage people to stick with it and be, you know, secure in their training and their understanding so they can do the right thing and we can do the right thing as institutions.

Kathy: That is so very true. I know the Chronicle did a whole section last year on the Title IX coordinator and that it was one of the hardest jobs at the institution, and I will say that it’s rare in a Title IX case that comes through that either party is happy, even when the finding is in favor of the one person. It is a little bit of a situation. I don’t want to say it’s a lose-lose, but it is a situation where I have found that neither party walks away from feeling elated and happy with whatever the result is, and it does run the risk of actually burning out your Title IX coordinators. I think the life expectancy of that is around 2-3 years I guess per run at an institution usually. If you can look at the statistics on that I think that was pointed out in the Chronicle article as well. So, you bring up a good point there about that can be part of really your risk register of the title IX coordinator’s position and turnover and that’s something I think that really is worth noting in our conversation today.

Joe: And that’s why at SUNY we put so much concentration and so many resources into prevention and you know we’ve talked about many of the programs we do that we basically give away customizable because.. And this is going to be a 10,20,30 year investment, so there is no prevention strategy that you install into your computer, and look, now we’ve prevented violence just by installing this software. It takes a long time, but ultimately the goal is to have fewer incidents because we’ve prevented them before they occurred. That is far better than doing a better response to those incidents when they do occur.

Kathy: Correct, and I want to give a big shout out to SUNY and the work that you’re doing there because you have invested so much, and as you said, made so much available just to all institutions for free, and I just want to say a thank you for all of us out in the field and as risk managers, we appreciate you doing that. It is, I know, a huge investment there in time, money, and all of that. It’s just very very appreciated, and you might just kind of not to give it a big endorsement but I kind of want people to know what’s available, what you can go to the website, what’s available that might help those out in the field and in the risk management world.

Joe: Sure, so we do a lot of training through our student conduct institute. We have our SUNY SPARK online training, which is free and customizable, and it is a student-facing training. SPARC stands for sexual and interpersonal violence prevention and response course. You can customize that, you could run it in your learning management system, don’t have to pay us a penny. We have TRAC, which is training and reducing alcohol consumption. It’s a companion to SPARC, and that is completely available, we do our spectrum conference, which is about preventing violence against members of the LGBTQIA+ community. We are going to very soon have another announcement of another free resource that we’re going to be putting out to help with the training of the folks who get these reports called RAPID, and we’re going to get that announcement out. That’s going to be available I think the first of the year. We got a grant to do that, that’s also going to be free and then just all these other webinars and trainings that we d when we’re able to make it free, otherwise we might charge $20, $25 for each just to cover our costs with zoom and some of those other costs. But, you know, we have a chancellor who’s very engaged in this, we have a governor who’s very engaged in this, my boss, the general counsel, is very engaged in this, and they want to do the right thing. SUNY is the largest university in the country and this is not a profit-making center for us, this is a change-making center for us, so anyone could google any of those resources. If you google SUNY sexual and interpersonal violence prevention and anything like that it’ll come up. Download them, they’re just 1’s and 0’s for us, so you can download them and use them, but last one I almost forgot is we have our SUNY visa and immigration resource. You are required by the VAWA regulations, not the handbook, in the regulations to offer among other things, visa and immigration resources, we worked with some of the best higher education immigration attorneys in the country. That is free, it is customizable, it is really accurate, you put in your campuses information and the computer spits out 121 excel spreadsheets, your customized visa and immigration resource in english and 120 written translations, again, all free so we’re just so excited to be able to share that with you at SUNY. 

Kathy: Well, thanks for giving us that list and those resources, and for those listening I hope that you will check those out because I have used them quite a bit. They are excellent resources and we are just all very appreciative of making that available to us, and like you said there are so many schools that really do not have the ability to pay for this, so it’s just really paving the way I think for helping all of higher education in general to get there, and that’s really what it’s all about, the prevention and doing the right thing, and that’s what we’re all really...I think at the root trying to do. So, any advice or kind of things to talk about at the end here that you want to say to our audience as we look forward and things that you would tell us that are really important that we need to be doing? I’ll take it from you. 

Joe: Yeah, sure. So first I want to say thank you for the kind words and we’ve got a great team at our SUNY student contact institute, our SUNY’s got your back, who create all these resources and I get to go on and talk with you but so much of the work is being done by our colleagues, my excellent excellent SUNY colleagues who are so committed so I want to give them quite a bit of the credit. They are incredible. I think we don’t know what is next. It is hard enough to keep up with what we are doing. I want to share with you, as you think about title IX, SUNY put together something called the joint guidance. We reached out, we had 50 of the nation’s best attorneys who worked at private firms, institutions of higher education in the Title IX area. If you google SUNY joint guidance or go to system.suny.edu/sci/tix2020 you can access that joint guidance, it is completely free, it has deeply detailed resources on all aspects of the title IX final rule. Check out the other resources that we have at SUNY, if we can be helpful, that is our goal. Risk management has never had a bigger challenging year than this year and literally everywhere you look there are incredible challenges. This is an area where I hope that higher education working together, higher ed for higher ed, can actually reduce the incidence of violence and harassment on our campus and work with each other to best respond when they do occur because we have real students who are experiencing real acts of harassment and violence that is interfering with their life, their health, their education, their mental health, and it's something that I hope we, together, can do for the next generation, to really reduce this and end this in our lifetime. 

Kathy: That's so true, Joe, I appreciate you saying that. I could not agree more with those comments and to make a real difference, I guess that’s why all of us are really in the higher ed spectrum here so that we really do want to make a difference. We just thank you so much, as always it is such an honor to have you here and we want to thank our listeners for listening and so I will say this is a wrap of URMIAmatters. I hope everyone has a great day.