to a Sample Issue

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to a Sample Issue

The Student Affairs
Compliance Report & Analysis
Executive Editors: Andrea Stagg and Joseph Storch, Associate Counsel, SUNY Office of General Counsel
Sample Issue
Summer 2015
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VAWA Regulations Go into
Effect July 1, 2015
In This Issue:
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The 2013 reauthorization of the
Violence Against Women Act was
effective immediately, and a Dear
Colleague Letter asked institutions
to make a good faith effort to comply as soon as possible. The regulations, finalized in October 2014, are
effective July 1, 2015. What do you
need to do this summer to be ready?
Below are the changes for this
summer, in brief.
Update Your Code. Revise
your code of conduct or student
handbook to prohibit dating violence, domestic violence, stalking
and sexual assault — the VAWA
crimes. Add definitions for these
violations, if you do not have them
already. The definitions can be
the same as the federal definitions
you’ll use to count Clery crimes,
or the state definitions (if your
state has them), or you can write
something new in language that
will reach your students.
Ensure the rights and remedies
published as available to complainants in Title IX cases (equal opportunity to bring witnesses, evidence,
make statements, appeal; simultaneous notice of outcome and more)
are available to complainants and
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Legal & Legislative Update . . . .
Being in Compliance While
Handling “Threat to Self”
Concerns . . . . . . . . . . . . . . . . .
OCR’s Recent Guidance
Package Stresses Importance
of Title IX Coordinator Role . . .
Increase in Sexual Violence
Complaints & Length of
Investigations . . . . . . . . . . . . . .
Summer tasks to make sure you’re ready
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Five Takeaways . . . . . . . . . . . . . 2
Five Things You Didn’t Know
About FERPA . . . . . . . . . . . . . . 2
Compliance in Focus . . . . . . . . . 6
Title IX and Transgender
Students . . . . . . . . . . . . . . . . . . 6
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Prevention & Awareness
Initiatives . . . . . . . . . . . . . . . . . 10
A Focus on Consent . . . . . . . . 10
Q&A . . . . . . . . . . . . . . . . . . . . . . 11
With Peyton Lipscomb, University
of North Dakota, Creator of
TunedIntoConsent . . . . . . . . . . 11
Training Tools . . . . . . . . . . . . . 12
Working with Attorneys: Tips
for Hearing Officers . . . . . . . . 12
IN THE NEXT ISSUE…
§
Q&A with a police chief who successfully handled a Yik Yak threat
§ An overview of VAWA requirements that go into effect July 1st
§ And much more!
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victims in domestic violence, dating
violence and stalking cases as well.
Write the New Required
“Policy Statements.” Add policy
statements to the Annual Security
Report, as required. Those statements
are snippets of separate policies
that must be fleshed out elsewhere,
whether it’s in your student code or a
standalone policy. In brief, the statements need to describe the following:
1. A policy encouraging prompt
reporting to police when a victim
wants to or is unable to report.
2. Programs in place to prevent
VAWA crimes and procedures
to respond to them.
3. Education programs about the
VAWA crimes, including primary prevention and ongoing
awareness.
4. Procedures victims of VAWA
crimes should follow, including
reporting information, evidence
preservation and more.
5. Institutional disciplinary procedures, including sanctions,
timelines, advisors and more.
6. Confidentiality in disclosing
VAWA crimes.
7. Written notice to victims about
available accommodations.
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Summer 2015
The Student Affairs Compliance Report & Analysis
There’s More…
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§
VAWA regulations cover some other requirements, too, including:
Train Campus Security Authorities (CSAs) to count new crimes —
domestic violence, dating violence and stalking
Add two new hate crime categories — national origin and gender identity
Ensure that personally identifiable information about a victim is not included
in a timely warning
These requirements and more will be covered in-depth in the next issue.
ness campaigns. Primary prevention programs are aimed at new
students and employees, and are
intended to prevent VAWA crimes
by promoting positive behaviors.
The focus of these programs should
be fostering healthy relationships
and bystander intervention.
Programs must include:
• A statement that VAWA crimes
are prohibited
• The state definitions for consent and for the VAWA crimes
• Information about risk reduc-
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8. Written notice to students and
employees about rights and
options for victims of VAWA
crimes.
Draft New Written Resources.
Institutions must provide information in writing about available
accommodations, resources, rights,
options and remedies (on and off
campus) to the campus community
and to victims of VAWA crimes.
Put this information together in a
pamphlet or packet, then stock relevant offices with the information.
Campus police or security, the Title
IX coordinator, dean of students,
counseling, health and academic
advising should all have access to
this standardized information.
Update Your New Student
Orientation. Your orientation programs are coming up, and VAWA
requires both primary prevention
programs and ongoing aware-
tion and bystander intervention
• Information on the campus
conduct process
These are some items to work
on this summer, but there is much
more to unpack about VAWA.
The next issue’s Compliance in
Focus article will provide both big
picture and fine point items, along
with frequently asked questions
about the new regulations.
—From Andrea Stagg
Five Takeaways
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Five Things You Didn’t Know About FERPA
1. A student’s consent gives you permission to disclose
education records to someone else, but consent does
not compel you to disclose this information.
2. On the flip side, seeking consent from or giving
notice to a student is a courteous measure, even
when FERPA allows the disclosure without a
student’s consent.
3. If a valid grand jury subpoena says not to disclose its
existence to a student, the college does not have to
notify the student about the subpoena before complying with the subpoena. [20 USC 1232g(b)(1)(J)(i)]
4. The law has long allowed an institution to share the
outcome of a disciplinary proceeding with the victim
for violations that are crimes of violence (and Title IX
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guidance and VAWA require that notice). [20 USC
1232g(b)(6)(A)]
5. When a student is found responsible for a violation
involving a crime of violence, FERPA says institutions may disclose to anyone the final results of the
disciplinary hearing. For example, the media might
ask you for a list of individuals found responsible for
sexual assault and technically, under FERPA, you
are allowed to disclose that information. But you are
not required to disclose it. Requests that come under
a state open records law may fall under an exception to disclosure, depending on the state. [20 USC
1232g(b)(6)(B)]
—From Andrea Stagg
Summer 2015
Legal & Legislative Update
TITLE II
To Consider…
Is your institution trying to balance accommodations for students
experiencing mental health difficulties with established enrollment policies?
If so, some questions to ask include:
§ Could your current policies be interpreted as punishing students for
seeking counseling help?
§ How do you determine if someone is a threat to self, and who is
involved in this determination?
§ If you offer students leave “contracts,” are they truly voluntary?
§ Are your actions based on students’ behaviors or conduct, not their
disabilities (which include psychiatric concerns)?
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In March 2011, the Department of Education’s Office for
Civil Rights (OCR) issued guidance on Title II of the Americans
with Disabilities Act that changed
how institutions respond to students who are a threat to themselves. It’s a compliance consideration that impacts how we work
with students experiencing mental
health concerns to this day.
When new Title II regulations were listed in the Federal
Register (9/15/10), the focus was
on a “direct threat” which meant
“a significant risk to the health or
safety of others.” The guidance
didn’t discuss a threat to self.
Why did OCR shift its thinking regarding threat to self? The
National Association of College
and University Attorneys (Lannon and Sanghavi, 11/1/11) presented two possible reasons:
• To avoid subjecting students
with disabilities that lead to
self-harming ideations to discrimination or behaviors that
are spurred by stereotypes
• To codify the U.S. Department of Justice’s interpretation of a direct threat, thereby
shifting OCR’s response to
such issues
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Being in Compliance While Handling “Threat to Self ” Concerns
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Beyond the Story: The restrictions listed here do not mean that colleges and universities are powerless when addressing students who are threats
to themselves. Institutions may have policies that are completely neutral as
to disability, but are implemented based on uniform conduct or situations.
For instance, a policy stating that all students transported for medical care for
any reason must have a note from a medical professional allowing them to
return, if imposed completely neutrally on students who are hospitalized for
broken legs and for suicide attempts, may be viewed by OCR as neutral.
Remember also that disabilities do not excuse behavior. All students
who violate the conduct code should be addressed equally regardless of
disclosed disability. The disciplinary process may require accommodations
to allow the student to utilize the process fully, but the disclosed disability
is not an amnesty from the conduct process.
Campus Impact
Since this Title II guidance
— or lack of guidance — was
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issued, campuses continue to
determine how to appropriately
respond to students with mental
health concerns who might be
considered a threat to self, while
also upholding their rights under
federal disability law.
For instance, the recent announcement by Yale University
(CT) that it would amend its
leave of absence policies came
about in response to the suicide
of a student. The Wall Street
Journal (4/28/15) reported that,
before her death, the student
posted to Facebook that she was
afraid she wouldn’t be able to
return to school if she left again
Summer 2015
having their original
offer of admission revoked.
Sources: Lannon, P. and Sanghavi, E.
(11/1/11.) “New Title II Regulations
Regarding Direct Threat: Do They Change
How Colleges and Universities Should Treat
Students Who Are Threats to Themselves?”
NACUA Notes, 10(1); The Wall Street
Journal, 4/28/15; The Title II Compliance
Binder, PaperClip Communications, 2014
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recommends that this leave period
be extended through the last day
of course selection instead.
Plus, the return process
formerly referred to as “readmission” will now be called “reinstatement,” the Journal reported,
as a way to make it clear that
students taking a leave aren’t
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to wait for new medication to
take effect.
The institution’s prior policy
allowed students to take a leave
of absence for up to two terms, although they had to decide quickly,
before the tenth day of the term.
Yale’s new policy — which was
determined by a committee —
TITLE II
TITLE IX
OCR’s Recent Guidance Package Stresses Importance of Title IX Coordinator Role
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The recent guidance package released by the Department of Education’s Office for Civil Rights (OCR)
reminds colleges and universities, as well as school districts, that they must designate a Title IX coordinator
who is “well-qualified, well trained,” according to Catherine E. Lhamon, assistant secretary for civil rights. That
designee must also be given “the authority and support necessary to do the job,” Lhamon wrote.
The guidance package includes three pieces:
§ A Title IX Resource Guide. This document covers the responsibilities and authority of a Title IX coordinator, that person’s administrative requirements, information collection and reporting guidelines, and how to
apply Title IX to issues such as athletics, retaliation, pregnant and parenting students and more.
§ A Letter to Title IX Coordinators. This letter reiterates federal support plus the importance of institutions
providing coordinators with authority and support to perform their responsibilities effectively.
§ A Dear Colleague Letter. This letter reminds schools that they must designate a Title IX coordinator
without potential conflicts of interest, make that person visible to the school community, and provide him/her
with authority, support and training.
All three pieces can be accessed at www2.ed.gov/policy/rights/guid/ocr/title-ix-coordinators.html.
Beyond the Story: It wouldn’t be April without a Dear Colleague Letter from OCR (major letters have come
in Aprils 2011, 2014 and 2015). Most of the guidance in this new release is a rehash of guidance already offered in disparate locations. That is not a bad thing, as the letter congregates the guidance into one document
and uses plainer language to explain the requirements. Although recent guidance has focused on peer sexual
violence, the scope is much broader; the resource guide explains how Title IX applies to recruitment, athletics,
pregnant students and other areas that may have been overlooked by newly appointed Title IX coordinators.
Remember also that Title IX (unlike Clery and the rest of the Higher Education Act) applies to higher education
and elementary and secondary education. That is why you may look at this OCR guidance and say, “Of course,
everybody knows that!” That may be true in higher education, but is likely less so among other educational sectors.
Find subscriber-only updates on Clery and ADA at www.StudentAffairsCompliance.com.
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Summer 2015
TITLE IX
Increase in Sexual Violence Complaints & Length of Investigations
tive when survivors see themselves
in the issues making headlines and
know that there are people available
to meet them wherever they are,”
she told Fusion.net (5/6/15).
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plaints within 180 days,” according to a letter from the DOE to
Senator Barbara Boxer (4/28/15).
However, the letter continues, “sexual violence investigations tend to be complex and may
involve systemic, campus- and
institution-wide issues, in addition to issues pertaining to specific
students. As such, Title IX sexual
violence investigations, on average, take longer to complete than
those across other jurisdictions.”
Just how long? At postsecondary institutions, Title IX investigations took an average of…
• 291 days in 2011
• 308 days in 2012
• 478 days in 2013
• 1,469 days in 2014
• 940 days in 2015 (so far)
Complaints have increased in
the past two years and Rebecca
O’Connor, vice president for public
policy at the Rape, Abuse and Incest
National Network, believes that’s
a good thing. “We see it as posi-
Beyond the Story: Choosing
to file a complaint with DOE gives
a student different standards, and a
different opportunity for compensation, than filing a lawsuit. While a
successful lawsuit will generally
lead to monetary damages (in addition to potential injunctive relief),
a complaint with OCR is not a
guarantee of financial compensation
(some cases are resolved through a
payment to those who bring a complaint, but that is not a necessary part
of a resolution). At the same time,
OCR uses very different standards
than federal courts use in adjudicating Title IX cases. It is much harder
to prove a case in federal court, and
is much more expensive, while filing
with OCR is all but free.
Also note a major difference
between the Clery Act and Title IX.
The Clery Act has “no private right
of action,” meaning that you cannot
sue a school directly for violating
the Clery Act, you can only file a
complaint with DOE. Title IX allows for both a complaint to OCR
and a private lawsuit.
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Campus sexual violence complaints have increased significantly
within the last five years, according
to newly released data from the Department of Education (DOE). In
2009, nine higher education complaints were filed with the DOE
while 102 were filed in 2014. Over
50 have already been filed in 2015.
President Obama proposed a
31 percent increase in funding for
the DOE’s Office for Civil Rights
(OCR), reported the Chronicle of
Higher Education (2/3/15), to hire
210 new OCR staffers to help with
Title IX investigations. Among
others, two members of the U.S.
Commission on Civil Rights have
opposed the increase, citing the
types of cases investigated by
OCR, the agency’s tactics and the
standards they have used (2/26/15).
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Length of Investigations
When OCR investigates a Title
IX sexual violence complaint,
their goal is “to resolve all com-
Forcible Sex Offenses Reported in Annual Clery Reports
2010 – 3,613 | 2011 – 4,198 | 2012 – 4,949 | 2013 – 6,016
Under the new VAWA regulations that go into effect on July 1, 2015,
Clery Act definitions were changed so sexual assaults will no longer be
distinguished as “forcible” or “non-forcible.”
Use caution when using statistics to make an argument regarding sexual
violence on college campuses. The increase in statistics is almost certainly
due to an increase in discussions about these issues (a positive development) and not necessarily that these crimes/violations are on the rise.
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Sources: DOE Letter to Senator Barbara
Boxer, 4/28/15; Letter to Congress from two
members of the U.S. Commission on Civil
Rights, 2/26/15; Fusion.net, 5/6/15; Chronicle
of Higher Education, 2/3/15
Summer 2015
Compliance in Focus
Title IX and Transgender Students
develop trans-inclusive nondiscrimination policies, require
staff to attend trans educational
training sessions, and undergo
monitoring and reporting.2
In 2014, OCR entered into an
agreement with another California school district, the Downey
Unified School District, to address discrimination against a
trans elementary school girl.
The girl had complained that her
school continually failed to address the verbal harassment she
experienced from other students
for her gender identity. Instead,
the school disciplined her for
wearing make-up and presenting
as female. Among the provisions
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OCR Cases
The Office for Civil Rights (OCR) of the Department of Education has
stated several times over the past few years that it expects educational
institutions to protect the rights of trans students. For example, in its latest
publication on the law, the 2015 Title IX Resource Guide, OCR wrote: “Title
IX protects students, employees, applicants for admission and employment,
and other persons from all forms of sex discrimination, including discrimination based on gender identity or failure to conform to stereotypical notions of
masculinity or femininity. All students (as well as other persons) at recipient
institutions are protected by Title IX — regardless of their sex, sexual orientation, gender identity, part- or full-time status, disability, race, or national origin
— in all aspects of a recipient’s educational programs and activities.”1
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As with all students, trans and
gender-nonconforming students
are covered under the prohibition of sex discrimination in Title
IX of the 1964 Civil Rights Act.
But this fact is often ignored in
discussions and trainings on the
law and what colleges and universities need to do to be in compliance. As a result, few colleges are
doing enough — or anything at
all — to prevent institutional and
individual discrimination against
trans students.
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By Genny Beemyn, Ph.D.
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To date, OCR has brought
cases against two school districts
for their mistreatment of trans
students. In 2013, the government reached a settlement with
the Arcadia, California Unified
School District on behalf of a
twelve-year-old trans boy. He
had been required to use a restroom in the nurse’s office instead
of the boy’s restroom and locker
room and told that he could not
be housed with cisgender boys
on a field trip. The settlement
mandated that the district grant
the student access to the same
facilities as other male students,
of the settlement in this case, the
district was required to:
• Work with its consultant to
ensure a school climate free of
harassment by incorporating
age-appropriate information
for students on gender identity,
gender-based discrimination
and harassment in the curricula;
• Continue to treat the student
the same as other female
students in all respects within
the education programs and
activities offered by the District, including access to sexdesignated facilities for female
students; and
• Remove any disciplinary
action related to her gender
U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April 2015, www2.ed.gov/about/offices/list/ocr/docs/dcl-title-ixcoordinators-guide-201504.pdf
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Resolution Agreement between the Arcadia Unified School District, the U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice, Civil Rights Division, July 24, 2013, www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf
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Summer 2015
Compliance in Focus
Trans Terminology
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A comprehensive list is available on our subscriber-only site:
www.StudentAffairsCompliance.com.
a matter of time. Just like K-12
schools, colleges and universities that do not treat trans students as how they self-identify
or that do not respond to reports
of anti-trans discrimination are
at risk for being investigated and
sanctioned. As has been demonstrated by OCR’s investigations
of colleges for their handling of
sexual violence and harassment
complaints, Title IX examinations
are far-reaching and can result in
sanctions and extremely negative
publicity for institutions.
fortable in gendered facilities,
so institutions must also create
gender-inclusive bathrooms and
private locker rooms.
But a college cannot require a trans person who wants
to use gendered bathrooms and
locker rooms to use only the
gender-inclusive ones. Rather,
trans students have the right to
use the facilities that they feel
best fit their gender identity and
expression, which may change
over time. For example, a trans
woman who is just beginning
to transition may look like her
assigned male gender and, as a
result, may feel uncomfortable
in women’s bathrooms and want
to use gender-inclusive facilities.
But as she transitions more and
appears more traditionally female
to others, she may choose to use
women’s restrooms.
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expression from her student
file and ensure that she is not
disciplined in the future for
acting or appearing in a manner that does not conform to
stereotypical notions of masculinity or femininity.3
In addition, the Departments
of Education and Justice submitted a statement of interest in 2014
in support of a fourteen-year-old
trans boy who is suing four Michigan school districts for failing
to address the ongoing anti-trans
harassment and violence he experienced — he was allegedly told
by administrators that he was “a
whiner” for complaining — and
for engaging in acts of discrimination. The student was prevented
from using men’s restrooms and
the districts would not provide
him with a gender-inclusive restroom, meaning that he could not
go to the bathroom all day. The
districts also refused to use his
chosen name and disclosed his
gender identity to staff and other
students. The student’s family
moved several times trying to find
a school where he could be safe,
but each time the harassment
began again, with school officials
doing nothing.
While OCR has yet to intervene on the college level on
behalf of a trans student, it is only
Bathrooms and Locker Rooms
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To be in compliance, colleges
and universities must take steps
to support both binary and nonbinary trans students. In terms
of bathrooms and locker rooms,
this means that trans students
who identify as female and male
must be able to use the gendered
bathrooms and locker rooms
that correspond to their gender
identity. At the same time, many
trans students, especially students
who identify outside of a gender
binary, do not feel safe or com-
Housing
Title IX dictates that campus
housing be handled the same way
as bathrooms and locker rooms. In
other words, colleges and universities have to respect a trans
U.S. Department of Education, “U.S. Department of Education’s Office for Civil Rights Announces Resolution of Civil Rights Investigation of
California’s Downey Unified School District,” October 14, 2014, www.ed.gov/news/press-releases/us-department-educations-office-civil-rightsannounces-resolution-civil-rights-investigation-californias-downey-unified-school-district
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Summer 2015
Compliance in Focus
Asking about Gender
residence hall communities (such
as first-year, honors, and themehousing). A trans engineering student, for example, who wants to
live on a STEM floor should not
be denied the opportunity because
they are trans.
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available option for them at some
colleges. But trans students cannot
be forced to live by themselves.
Ideally, a student should be
able to reside with another student of any gender, anywhere
on campus, just as they would
be able to do if they lived offcampus. If such an encompassing
policy is not politically feasible,
then gender-inclusive housing
should be available in different
types of housing (doubles, suites,
and apartments), in different
parts of campus, and in different
Athletics
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woman’s desire to live with other
women and a trans man’s desire to
live with other men. At the same
time, institutions need to create
gender-inclusive housing (housing
in which students are assigned to
rooms without regard to gender)
to accommodate students who do
not identify as female or male and
trans women and trans men who
have not transitioned and who
are uncomfortable living with
someone of their assigned gender.
Trans students can request single
rooms, and that might be the best
The NCAA has specific guidelines about the inclusion of trans
students in intercollegiate sports.4
For intramural and recreational
sports, in which campuses can
set their own rules, trans students
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Underlying all of these compliance measures is being aware of students’ gender identities. In order for colleges
and universities to create trans-inclusive environments, institutions have to ask about gender identity on admissions
applications, housing and health care forms, and other documents. Because a growing number of students are
identifying beyond male and female, a question on gender identity needs to include non-binary choices. Specifically, a
gender identity question should include “genderqueer,” “androgynous,” and “agender” among the options.
The Consortium of Higher Education LGBT Resource Professionals, the international organization for college staff
whose positions include providing support to LGBTQ+ students, recommends that institutions simply offer a fill-in the
blank for gender identity on forms. If specific choices are needed (such as for a dropdown menu), the organization
suggests the following wording.
Gender identity (optional; choose all that apply):
__ agender
__ genderqueer or gender fluid
__ androgyne
__ man
__ demigender
__ questioning or unsure
__ an identity not listed: please specify __________________________
__ trans man
__ trans woman
__ woman
Because gender is fluid and some trans people are not out when they apply to college, students should have the
ability to change their gender identity on campus records during their academic careers. Ideally, this information should
be part of students’ records that they can access and change online, but which would not be visible to the public.
Pat Griffin and Hudson Taylor, “Champions of Respect: Inclusion of LGBTQ Student-Athletes and Staff in NCAA Programs,” LGBTQ Subcommittee of the NCAA Committee on Women’s Athletics and the Minority Opportunities and Interests Committee, 2012, www.ncaapublications.com/p4305-champions-of-respect-inclusion-of-lgbtq-student-athletes-and-staff-in-ncaa-programs.aspx
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Summer 2015
Compliance in Focus
the first dozen colleges to come
up in a Google search for Title
IX campus web pages, none
specifically mention that students
can file a complaint because of
discrimination based on gender
identity or not conforming to
stereotypical notions of masculinity and femininity. Moreover, the
majority of colleges and universities still do not include “gender
identity” in their nondiscrimination policies, which is a clear
violation of the law.5
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stitute discrimination against trans
students. Given that colleges and
universities typically do not have
gender therapists on their counseling center staffs, and that many
smaller and commuter colleges do
not even have counseling centers,
institutions would best ensure that
they do not discriminate by having their student health insurance
cover therapy from area clinicians.
Similarly, in the absence of a campus endocrinologist, institutions
would be certain to be in accordance with the law by covering
off-campus hormone replacement
therapy for their trans students.
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must be allowed to participate in
keeping with their gender identity, without regard to transition
plans or status, in order to comply
with Title IX’s prohibition against
gender-based discrimination.
Students who identify outside of
a gender binary should be able to
participate on the gendered team
that best corresponds to their
identity, and if they participate on
a mixed gender team that dictates
a given number of female or male
players, they should not count
toward either category.
Health Care
Trans Inclusion in Title IX
Guidelines
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The Title IX settlements to
date in support of trans students
have not involved health care, so
OCR’s expectations in this area
are not entirely clear. Seemingly,
failing to provide access to and
coverage for therapy, hormones,
and gender-affirming surgeries for
transitioning students would con-
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Despite trans and gender-nonconforming students being covered under Title IX, few colleges
and universities acknowledge this
inclusion, much less have taken
steps to ensure compliance. Of
Resources
Campus Pride Trans Policy Clearinghouse:
www.campuspride.org/tpc
Consortium of Higher Education LGBT Resource Professionals,
“Suggested Best Practices for Supporting Trans Students”:
www.lgbtcampus.org/policy-practice-recommendations
Lambda Legal, “Transgender College Students,” Part of their
Transgender Rights Toolkit:
www.lambdalegal.org/publications/trans-toolkit
Conclusion
Many colleges and universities have a long way to go to become welcoming to and inclusive
of trans students, and it should
not have taken a reinterpretation
of Title IX for them to recognize
that they must act. But now that
the law is being applied to trans
and gender-nonconforming students, institutions can no longer
ignore these students’ experiences
and needs.
Genny Beemyn, Ph.D., is the director of the
Stonewall Center at the University of Massachusetts, Amherst, and the Trans Policy
Clearinghouse coordinator for Campus
Pride. Their many books include The Lives
of Transgender People (2011) and A Queer
Capital: A History of Gay Life in Washington, D.C. (2014). They are currently working
on a book entitled Campus Queer: The
Experiences and Needs of LGBTQ+ College
Students (Johns Hopkins University Press)
and an anthology entitled Outside the Gender
Box: Trans and Non-Binary Gender People
in Higher Education (SUNY Press).
Genny Beemyn, “Colleges and Universities with Nondiscrimination Policies that Include Gender Identity/Expression,” Campus Pride, last updated
April 26, 2015, www.campuspride.org/tpc-nondiscrimination
5
9
Summer 2015
Prevention & Awareness Initiatives
E
The final VAWA regulations that go into effect on July 1, 2015 require institutions to provide incoming students and
new employees with primary prevention and awareness programs. Schools must also provide ongoing prevention and
awareness campaigns. This column offers examples of such initiatives happening at campuses throughout the U.S.
A Focus on Consent
help spark and guide conversations
across campus.” The guide includes
community discussion questions,
the three pillars of consent, things
to remember, the circumstances under which consent cannot be given
and facilitation tips.
It can be found at: http://uhs.
berkeley.edu/consent/pdf/
ConsentDiscussionGuide.pdf.
And table toppers featuring four
different gender pairs were posted
throughout the dining halls as a
way to show that consent isn’t just
a concern for heterosexual men.
PL
Consent is “The affirmative,
unambiguous and voluntary agreement to engage in a specific sexual
activity during a sexual encounter,” according to the VAWA Final
Regulations (10/20/14). Campuses
are encouraged to check the definition within their own jurisdictions,
too. And consent is a key concept to
share through your campus’ required
prevention and awareness programs.
Here are some examples of
what’s happening on campus…
M
Whitman College’s All Students
for Consent Group
UC Berkeley’s Consent Discussion
Guide
A Focus on…
The focus of prevention
and awareness programs under
VAWA includes…
§ Dating violence
§ Domestic violence
§ Sexual assault
§ Stalking
§ Consent
§ Bystander intervention
§ Risk reduction
10
Every fall since 2010, Humboldt State University (CA) offers
The Consent Project, which they
describe as “a space to recognize
and honor survivors of sexualized
violence of all genders.” It features
interactive art projects “to deconstruct our ideas of gender and sexualized violence” and community
resources along with a space for
survivors and allies to talk about
how violence has affected them.
This Washington school group
uses the tagline “Consent is Necessexy” as they promote “a safe
and fun consent culture for all.”
All Students for Consent (ASC)
sponsors initiatives such as the
“Ask For It” Campaign to flip the
negative “she/he was asking for
Sources: All Students for Consent, Student
it” phrase sometimes associated
Life, Whitman College; www.facebook.com/
with sexual violence to encourage
WhitmanASC; The Pioneer News, 9/23/13;
Whitman College Newsroom, 4/21/14;
students to ask for consent instead.
www2.humboldt.edu/stoprape/activism.html;
As part of the campaign, ASC
http://uhs.berkeley.edu/consent/pdf/ConsentDiscussionGuide.pdf
held an event where students
practiced asking for consent regarding multiple
Subscriber-Only Resources
actions to help remove the
Head to our subscriber-only website at
awkwardness from the ask.
www.StudentAffairsCompliance.com to
Another event saw students
download a PDF handout called “Asking
handing out chocolate kissfor Consent” and for links to recent videos
es and flyers in the library,
first asking if it was okay
about consent and bystander intervention.
to “give someone a kiss.”
SA
UC Berkeley’s Student Health
Advisory Committee developed
the Creating a Culture of Consent
@ Berkeley discussion guide “to
The Consent Project at Humboldt
State U.
Summer 2015
Q&A
about initiatives being done to raise
awareness on their campuses.
Q: What inspired you to use this medium to spread consent awareness?
A: The idea came to me when I
helped coordinate a collaborative
program between Housing and the
Dean of Students office. I asked
Amber to come in to speak with
students about consent. She left it
up to the staff to create the materials we thought would bring students to the program.
I asked my resident advisers
(RAs) for program title ideas and
one of my RAs sent me a snapshot
of a pin she saw posted on Pinterest of a “Don’t Touch the Butt”
bulletin board. This sparked the
idea to look for other consent programming ideas on Pinterest.
Then for about two hours, I sat
down and created the other nine
posters from scratch. It was fun rethinking the lyrics to popular songs
to use as a passive program to
complement the consent program,
which was held a week later.
I understand students lead
busy lives and sometimes are not
available to talk during scheduled
program times so I wanted to create the posters as a way to spark
conversation around consent and
educate students in a more informal
way. The feedback on this has been
positive. Not only has it opened
doors to conversations,
but students
are excited
to stop in my
office and
chat about
Reprinted with Permission
from TunedIntoConsent
ideas they
have for new posters. It is exciting
to start to see it grow on campus.
M
PL
The “TunedIntoConsent” initiative started as a project at the University of North Dakota (UND), as graduate student (and now recent grad!)
Peyton Lipscomb took popular song
lyrics and turned them into messages
about consent. Through the power
of social media, TunedIntoConsent
has turned into a national movement,
garnering interest from hundreds of
student affairs professionals and emphasizing the importance of consent
far beyond the UND campus.
We talked with Lipscomb to
find out more about this simple,
yet effective, initiative…
E
With Peyton Lipscomb, University of North Dakota,
Creator of TunedIntoConsent
SA
Q: What is your role on campus?
A: During my two years at UND,
I have worked as a Residence Hall
Director for a co-ed residence
hall. A part of my experience at
UND has been also working as a
graduate student investigator in
the Dean of Students office. These
experiences and the conversations
I have had with Amber Flynn,
Coordinator of Sexual Respect &
Violence Prevention, played a role
in the creation of the lyric posters.
Q: What is “TunedIntoConsent”?
A: TunedIntoConsent is a passive program designed to spark
conversations on campuses about
consent. It has also started to grow
to involve a space where student
affairs professionals can speak
11
Q: Why do you think it’s so important for college students to understand the concept of consent?
A: In my opinion, it’s the first step
in prevention. Consent focuses on
respect for ourselves and others. If
students understand how to communicate where their boundaries
are and accept the boundaries of
others, then it’s a step in the right
direction. I feel the more consent
is integrated into conversations the
more normalized it will become for
students and the culture at large.
Q: How can people learn more
about TunedIntoConsent and find
the posters for download?
A: If anyone is interested in getting TunedIntoConsent they can
find resources at: https://tunedintoconsent.wordpress.com or join
the conversation on Facebook:
https://www.facebook.com/
groups/451812228314414/ or
Twitter: #TunedintoConsent or
@TuneintoConsent.
Summer 2015
Training Tools
For particularly thorny questions,
reach out to a supervisor or the
attorney for the institution. It is
always better to ask in advance
rather than addressing the issues
in a lawsuit.
Be consistent. When addressing an objection, be consistent
with past rulings. When assessing
a penalty, be consistent with past
penalties for the same violation,
even if this person seems much
crueler or nicer than the last person to come before the board.
Use your instincts when reviewing evidence. Most witnesses
spin stories one way or another
(even when they think they are
doing the right thing) and physical
evidence is not always as it seems.
In a future article, we will dive
deeper into the questions of assessing evidence in an investigation and
with the help of a hearing panel.
E
you or other hearing officers or
treat this like a criminal case. You
are trying to make the right decision, not a narrow legal determination based on circumscribed
evidence. If an attorney is getting
out of hand, remind her of the
limited role she can play. If she
continues, ask her to sit outside for
the remainder of the hearing.
The student conduct process
is an educational process, not
bound by the Federal Rules of
Evidence and Civil Procedure.
Always keep that in mind and
remember you are not being asked
whether to incarcerate someone;
you are being asked whether that
person has violated college policy
and, if so, what the appropriate
sanction should be.
Seek guidance from the Student Conduct Director (or similar role) or college attorney and
don’t be afraid to ask questions.
M
PL
You’ve worked hard on your
code of conduct, and trained your
staff. But in the heat of a hearing, some of that training may
be forgotten. Even if they cannot
participate under your code, attorneys often find ways of getting
under hearing officers’ skin or
intimidating a panel by treating
the proceeding as a criminal law
case. It isn’t. Give this tip sheet to
your hearing officers or panelists
to help them maintain control and
hold successful hearings.
Follow the code: The code of
conduct addresses most situations. If an objection arises and
the answer isn’t in the code, make
a reasonable and fair determination and be transparent with all
parties about your choice. Keep
notes of your decision.
Lawyers can be present but
don’t run the show. Don’t let an
attorney for a student intimidate
SA

Working with Attorneys: Tips for Hearing Officers
The Student Affairs Compliance Report
& Analysis is published by PaperClip
Communications, Inc.
Publisher and Circulation:
PaperClip Communications
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Telephone 973-256-1333
Fax 973-256-8088
www.Paper-Clip.com
www.StudentAffairsCompliance.com
Photocopy of or electronic reproduction of
this newsletter in whole or in part is allowed
under license as described in your subscriber
agreement.
Executive Editors:
Andrea Stagg and Joseph Storch,
Associate Counsel, SUNY Office of General
Counsel
Managing Editor:
Julie Phillips • [email protected]
—From Joseph Storch
Editorial Staff:
Doris McLaughlin, Publisher
Andy McLaughlin, President
Katherine Bitgood, Manager of Marketing &
Production
Amy Cunningham, Graphic Designer
Articles reflect the views of their authors
and not necessarily the views of PaperClip
Communications or the editors.
© Copyright 2015
PaperClip Communications and its contributors do not provide legal or compliance advice, and this document should be considered general
information only. Individuals with specific questions regarding legal or compliance issues should contact their institution’s legal counsel and be aware
that laws may differ by jurisdiction.
12

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