The U.S. Department of Education, Office for Civil Rights, published a Dear Colleague letter on April 24, 2015, reminding all schools receiving Federal financial assistance to designate at least one employee to coordinate their efforts to comply with and carry out their responsibilities under Title IX. The Department published a companion letter directed to Title IX coordinators that provides more information about their responsibilities, along with a resource guide.
Title IX prohibits schools that receive Federal financial assistance from subjecting any person to discrimination on the basis of sex. The regulations issued under Title IX require schools to designate at least on employee to coordinate its Title IX responsibilities. This role cannot be vacant; a school must have someone actively serving in this role at all times.
In the Dear Colleague Letter, the Department states that the Title IX coordinator's primary responsibility is to coordinate the school's compliance with Title IX, including the school's grievance procedures for resolving Title IX complaints. The Title IX coordinator must be informed of all reports and complaints raising Title IX issues, even if the complaint was initially filed with another individual or office. The Title IX coordinator is also responsible for coordinating the school's response to all Title IX complaints. This may include monitoring outcomes, identifying and addressing any patterns, and assessing effects on campus climate.
Proper support for the school's Title IX coordinator is critical in order to be able to effectively coordinate the school's compliance with its Title IX obligations. The Department emphasizes that the Title IX coordinator must have knowledge of the school's policies and procedures on sex discrimination, and should be involved in the drafting and revision of such policies and procedures to ensure that they comply with Title IX. Schools should also provide appropriate training for its Title IX coordinators, which should explain the different facets of Title IX, applicable OCR guidance, and the school's Title IX policies and procedures. The Department recommends that schools provide regular training for their Title IX coordinators as these laws and guidance may change.
The Dear Colleague Letter also highlights each school's obligation to make the role of Title IX coordinator visible to the school community. The school must always notify students and employees of the name, office address, telephone number and email address of its Title IX coordinator. Complete and current information about the school's Title IX coordinator must also be published on the school's website. The OCR encourages schools to create a website page that includes the name and contact information of its Title IX coordinator, relevant Title IX policies and grievance procedures, and other resources related to Title IX compliance and gender equity. A link to this page should be prominently displayed on the school's homepage.
In an interesting development, the Department noted in a footnote that it will begin collecting information about schools' Title IX coordinators from the campus safety and security reports required under the Clery Act. The collection of this information will begin in 2015. This highlights even further the need for all Title IV schools to designate properly trained Title IX coordinators to effectively administer their Title IX responsibilities.
Please contact Chris DeLuca at DeLuca Law LLC if you have questions regarding Title IX compliance.
Please click here for a copy of the Department's Dear Colleague Letter as well as the Title IX Coordinator Resource Guide.
Thursday, April 30, 2015
Monday, December 8, 2014
Final Observations from the 2014 FSA Conference
The final two days of the 2014 Federal Student Aid Conference contained a full slate of training and information sessions hosted by the Department of Education.
On Thursday I attended a breakout session discussing the Department's financial literacy resources. Representatives from the Department shared interesting data regarding the general level of financial knowledge possessed by postsecondary students. For example, the Department's studies indicate that students often borrow more than they expected, and that if they could do things over again they would borrow less and begin making student loan payments while still in school. The speakers emphasized three key concepts that students should understand - budgeting, borrowing and repayment strategies. The Department has a variety of financial awareness counseling tools available to students and schools. These include the Financial Awareness Counseling Tool (FACT), a repayment estimator (www.StudentAid.gov/repayment-estimator), and a Financial Aid Tool Kit (www.financialaidtoolkit.ed.gov).
On Thursday I attended a breakout session discussing the Department's financial literacy resources. Representatives from the Department shared interesting data regarding the general level of financial knowledge possessed by postsecondary students. For example, the Department's studies indicate that students often borrow more than they expected, and that if they could do things over again they would borrow less and begin making student loan payments while still in school. The speakers emphasized three key concepts that students should understand - budgeting, borrowing and repayment strategies. The Department has a variety of financial awareness counseling tools available to students and schools. These include the Financial Awareness Counseling Tool (FACT), a repayment estimator (www.StudentAid.gov/repayment-estimator), and a Financial Aid Tool Kit (www.financialaidtoolkit.ed.gov).
The Conference included a breakout session explaining the gainful employment program disclosures. The Department representatives reminded
attendees that the gainful employment disclosure requirements are already in
place. The federal court decision from 2012 that vacated most of the prior gainful employment
regulations left intact the program disclosure requirements.
Schools are required to continue making their gainful
employment disclosures in accordance with the current regulations until
December 31, 2016. The information to be disclosed includes:
•
Occupations
•
Normal time to complete program
•
On-time graduation rate for completers
•
Tuition & fees, books & supplies, room
& board
•
Placement rate for completers (as determined by
State or Accreditor methodology)
•
Median loan debt
•
Other program information provided by the
Secretary
The Department provides a gainful employment template that
schools are required to use in making these disclosures. The Department
released an updated disclosure template in September 2014. Schools have until January 31, 2015 to update
their gainful employment disclosure statements with information from the
2013-14 award year.
The speakers reminded attendees that the gainful employment
program disclosures must be included in all promotional materials about such
programs. Promotional materials include invitations, ads, course catalogs,
social media, etc. that mention or otherwise refer to a specific gainful employment program. If
it is not feasible to include the template, then schools must include a live link or URL to the materials and clearly explain what is available at that Web page.
The Department is working on the transition from the current
disclosure requirements to the requirements of the final regulations issued on
October 31, 2014. The effective date of the new disclosure requirements is January 1, 2017, which gives the Department time to conduct consumer testing and
prepare a new disclosure template.
I next attended a breakout session addressing schools' compliance requirements related to Clery Act reporting. This included a review of the schools' annual security report requirements. The speaker emphasized that the annual security report is more than just the disclosure of the yearly crime statistics. The report must include three year's of campus crime statistics, include all required campus safety and security policies and procedures, and be distributed annually to all students and current employees.
The speaker also discussed schools' obligations under the Violence Against Women Reauthorization Act of 2013 (VAWA). The new law requires expanded reporting for incidents of sexual assault, dating violence, domestic violence, and stalking (including cyber-stalking). The law also requires that the annual security report include additional information about policies, procedures, and training programs aimed at sexual assault prevention and response. New programmatic and training requirements include awareness campaigns, primary prevention, risk reduction and bystander intervention, and specialized training for adjudication officials. This session ended with a discussion of the requirement for schools to certify that they have developed and implemented a drug and alcohol abuse education and prevention program.
My attendance at the 2014 FSA Conference concluded by
attending the Birds of a Feather session for for-profit institutions. This was
a question-and-answer session with Department representatives and conference
attendees representing for-profit institutions.
As one might expect, most of the conversations centered on the new
gainful employment regulations. Some participants asked whether the Department
might grant any exceptions or perhaps conduct more program reviews as an
alternative to the new regulations. The Department’s response was
essentially that the regulations are now final, and schools will be expected to
comply under the letter of the regulations. The Department representatives also
emphasized the necessity of schools to begin compiling their data as soon as possible to that the student information is timely reported to NSLDS by July 31, 2015.
The Department representatives indicated that additional
guidance of interest to for-profit schools will be coming soon. This includes
updates to the Clery Act handbook to provide additional information to schools
as they work to implement the new disclosure requirements related to VAWA. School representatives suggested
that the Department provide additional educational opportunities such as
specific Title IX training, and Department representatives seemed
receptive to this idea.
In summary, it was a very educational week in Atlanta. It
will be interesting to see how many of these issues evolve over the coming
weeks and months, particularly as it pertains to gainful employment reporting
and compliance.
Wednesday, December 3, 2014
Notes from Day 2 of the US Department of Education 2014 FSA Conference
Conference Day 2 began for me with a breakout session addressing the process for reporting gainful employment information to the National Student Loan Data System (NSLDS). As mentioned in yesterday's posting, most schools will be required to report six years worth of student gainful employment data to NSLDS by July 31, 2015. Department representatives stated that NSLDS will be open for reporting in early 2015. When questioned if there might be an extension of the July 31, 2015 due date, today's speaker emphasized that the Department believes there is plenty of time for schools to gather and submit the data by this deadline.
Schools are required to only submit data on students enrolled in a gainful employment program, and only data on students who are Title IV aid recipients. Data that schools reported to NSLDS in 2011 pursuant to the prior gainful employment regulations will not be available to reuse. Student financial data to be reported to NSLDS includes private loan amounts, institutional debt, tuition and fees, and allowance for books, supplies and equipment as included in the school's cost of attendance. Schools are not required to submit student Title IV loan information because that information is already in NSLDS. Schools will be able to submit gainful employment data online by either individually entering student data or submitting an Excel spreadsheet template. Schools will also have the option to submit data through batch processing.
The Department is still working on a number of details connected with this data collection process. Attendees were told to expect an updated NSLDS Gainful Employment User Guide and an updated Gainful Employment Instruction Guide and Submittal Template in early 2015. The Department also indicated that they will be hosting webinars in 2015 to assist schools in complying with this data submission.
Next I attended the breakout session regarding the cohort default rate (CDR) challenge and appeal process. After an overview of the CDR process and reports available to schools through NSLDS, the Department representatives described the process for filing CDR challenges, adjustments and appeals. These include incorrect data challenges, uncorrected data adjustments, loan servicing appeals and erroneous data appeals. The Department representatives emphasized the need for schools to understand the timing deadlines for submitting challenges or appeals. If the challenges or appeals are not submitted within the established timelines then the Department will not consider the merits of the school's claim.
Today's speakers also addressed the issue of loan servicer appeals. In general, schools can challenge the inclusion of a student in its CDR if the student's loan was improperly serviced. However, the minimum loan servicing standards for CDR appeals purposes is very low. In general, a loan will be considered improperly serviced only if the borrower made no payments on the loan and the servicer failed to attempt one phone call, failed to send a final demand letter, and failed to perform skip tracing. Today's speaker emphasized that it is very unlikely that a federal loan servicer did not meet these minimum servicing requirements.
Schools are required to only submit data on students enrolled in a gainful employment program, and only data on students who are Title IV aid recipients. Data that schools reported to NSLDS in 2011 pursuant to the prior gainful employment regulations will not be available to reuse. Student financial data to be reported to NSLDS includes private loan amounts, institutional debt, tuition and fees, and allowance for books, supplies and equipment as included in the school's cost of attendance. Schools are not required to submit student Title IV loan information because that information is already in NSLDS. Schools will be able to submit gainful employment data online by either individually entering student data or submitting an Excel spreadsheet template. Schools will also have the option to submit data through batch processing.
The Department is still working on a number of details connected with this data collection process. Attendees were told to expect an updated NSLDS Gainful Employment User Guide and an updated Gainful Employment Instruction Guide and Submittal Template in early 2015. The Department also indicated that they will be hosting webinars in 2015 to assist schools in complying with this data submission.
Next I attended the breakout session regarding the cohort default rate (CDR) challenge and appeal process. After an overview of the CDR process and reports available to schools through NSLDS, the Department representatives described the process for filing CDR challenges, adjustments and appeals. These include incorrect data challenges, uncorrected data adjustments, loan servicing appeals and erroneous data appeals. The Department representatives emphasized the need for schools to understand the timing deadlines for submitting challenges or appeals. If the challenges or appeals are not submitted within the established timelines then the Department will not consider the merits of the school's claim.
Today's speakers also addressed the issue of loan servicer appeals. In general, schools can challenge the inclusion of a student in its CDR if the student's loan was improperly serviced. However, the minimum loan servicing standards for CDR appeals purposes is very low. In general, a loan will be considered improperly serviced only if the borrower made no payments on the loan and the servicer failed to attempt one phone call, failed to send a final demand letter, and failed to perform skip tracing. Today's speaker emphasized that it is very unlikely that a federal loan servicer did not meet these minimum servicing requirements.
This afternoon’s breakout sessions included a big-picture
overview of the various federal student aid systems. The major federal student
aid systems include the Central Processing System (CPS), Common Originating and
Disbursement (COD), the National Student Loan Data System (NSLDS), Grant
Management System (G5), the Student Aid Internet Gateway (SAIG) and the
Postsecondary Education Participants System, among others. Today’s presentation
offered a general overview of these systems and how they relate to each other.
The presentation materials would be a valuable tool for schools to use for
purposes of introducing new financial aid administrators to the various
financial aid systems.
Today’s sessions ended with an open forum. The purpose of
the open forum is to allow participants at the conference to ask
specific questions to a panel of Department officials. During today's session,
Department officials indicated that they are working on guidance to provide
schools with additional flexibility in the loan counseling process. While it is
important to note that this guidance is not finalized, the proposal discussed
would allow schools to require that students prepare a personal financial
budget as part of the entrance counseling process. Schools could not use these budgets to make determinations that would limit loan disbursements. However, schools could use the budgets as a tool to
counsel the students in an effort to educate them as to an appropriate amount of
debt for their education. Another interesting development mentioned by Department
officials was the creation of a multi-regional team to work with corporate
owned school systems with schools located in different regions of the country. The
Department’s goal with this new multi-regional team is to promote consistent
treatment of all schools within the same ownership group regardless of their
location.
The Department’s PowerPoint presentations for all the sessions
from the 2014 FSA Conference, including the sessions described above, can be
downloaded from the FSA Conference website.
Tuesday, December 2, 2014
Notes from US Department of Education 2014 FSA Conference - Day 1
I am in Atlanta this week to attend the U.S. Department of Education's annual Federal Student Aid Conference. The conference offers over 50 educational training and information sessions hosted by the Department.
The Conference traditionally begins with a welcome and federal update presented by top Department officials. Today's session included general remarks from Ted Mitchell, the Under Secretary of Education. Dr. Mitchell discussed the Department's general goals as it relates to the accessibility and affordability of higher education. This included an overview of President Obama's higher education initiatives of paying for performance, promoting innovation and competition, and ensuring that student debt remains affordable.
The federal update session included a general overview of the new gainful employment regulations that affect nearly all proprietary schools and non-degree programs at public and non-profit institutions. The Conference will include more detailed information and training during various breakout sessions. However, one point emphasized during today's general session was that schools will need to submit six years worth of student gainful employment data to the Department by July 31, 2015. Even though the gainful employment regulations do not go into effect until July 1, 2015, the Department official today made it clear that schools should be working now to collect and assemble this information so that they can meet this reporting deadline.
After the opening remarks and general update I attended the breakout session regarding consumer disclosure requirements. Of particular interest was the Department's list of the most commonly cited findings related to consumer disclosures. These included:
The breakout session with respect to reporting changes affecting institutional eligibility was a refresher on the requirements for reporting institutional changes to the Department. The speakers highlighted the distinction between changes that need prior Department approval and those changes that require only notice to the Department. The speakers cautioned that if a school notifies the Department of a change without waiting for approval, but it is subsequently determined that the change did in fact require approval, then the school can be liable for all federal student aid funds improperly disbursed. The speakers suggested that to minimize the risk of improperly distributing federal student aid funds, a school could seek Department approval concurrent with providing notification of the change.
The final breakout session that I attended today addressed the state authorization requirements of the Higher Education Act and related regulations. A key point emphasized by today's speakers was the requirement that a state must have a process to review and appropriately act on complaints concerning schools. The speakers also emphasized that schools must provide students or prospective students with contact information for filing complaints with its accreditor and state approving or licensing entity.
That is all to report from Day 1 of this year's Conference. I will offer additional observations later this week.
The Conference traditionally begins with a welcome and federal update presented by top Department officials. Today's session included general remarks from Ted Mitchell, the Under Secretary of Education. Dr. Mitchell discussed the Department's general goals as it relates to the accessibility and affordability of higher education. This included an overview of President Obama's higher education initiatives of paying for performance, promoting innovation and competition, and ensuring that student debt remains affordable.
The federal update session included a general overview of the new gainful employment regulations that affect nearly all proprietary schools and non-degree programs at public and non-profit institutions. The Conference will include more detailed information and training during various breakout sessions. However, one point emphasized during today's general session was that schools will need to submit six years worth of student gainful employment data to the Department by July 31, 2015. Even though the gainful employment regulations do not go into effect until July 1, 2015, the Department official today made it clear that schools should be working now to collect and assemble this information so that they can meet this reporting deadline.
After the opening remarks and general update I attended the breakout session regarding consumer disclosure requirements. Of particular interest was the Department's list of the most commonly cited findings related to consumer disclosures. These included:
- Annual Notice of Consumer Information
- Drug and Alcohol Abuse Prevention
- Annual Notification of FERPA Rights
- Voter Registration Information
- Copyright Infringement
- Gainful Employment Disclosures
- Clery Act Disclosures
The breakout session with respect to reporting changes affecting institutional eligibility was a refresher on the requirements for reporting institutional changes to the Department. The speakers highlighted the distinction between changes that need prior Department approval and those changes that require only notice to the Department. The speakers cautioned that if a school notifies the Department of a change without waiting for approval, but it is subsequently determined that the change did in fact require approval, then the school can be liable for all federal student aid funds improperly disbursed. The speakers suggested that to minimize the risk of improperly distributing federal student aid funds, a school could seek Department approval concurrent with providing notification of the change.
The final breakout session that I attended today addressed the state authorization requirements of the Higher Education Act and related regulations. A key point emphasized by today's speakers was the requirement that a state must have a process to review and appropriately act on complaints concerning schools. The speakers also emphasized that schools must provide students or prospective students with contact information for filing complaints with its accreditor and state approving or licensing entity.
That is all to report from Day 1 of this year's Conference. I will offer additional observations later this week.
Friday, October 24, 2014
Dept. of Education Issues Final Regulations Implementing the Violence Against Women Act
Earlier this week the U.S. Department of Education published the final regulations implementing the changes made by the Violence Against Women Act (VAWA). VAWA was enacted in Spring 2013, and amended the Clery Act to require schools to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking. VAWA also requires schools to include certain policies, procedures and programs pertaining to these incidents in their annual security reports.
These final regulations are nearly identical to the proposed regulations that the Department published in June 2014. The Department received approximately 2,200 comments during the public comment period for the proposed regulations. In response to these comments the Department made a few minor changes with respect to schools' disclosure requirements. The Department also added clarification that a school may remove reports of crimes that have been "unfounded." However, the Department clearly states that it believes this would be a rare situation. Even if a school satisfies the regulatory requirements for deeming a reported crime to be unfounded, the school must report to the Department and disclose in its annual security report the number of crime reports that were unfounded and subsequently withheld from its crime statistics.
During the proposed regulations' public comment period, a number of commenters noted the significant compliance burden that the regulations place on small institutions. For example, the commenters referenced the requirement for institutional disciplinary proceedings in the case of alleged dating violence, domestic violence, sexual assault or stalking. In response, the Department noted that institutions are not making determinations of criminal responsibility but are determining whether the institution's own rules have been violated. The Department further noted that students at smaller institutions should have the same protections as their counterparts at larger institutions. The Department also denied a commenter's request to develop and provide required training at no cost to small institutions.
The Department has published additional resources for schools and students addressing the issues covered under VAWA. The Department created the website NotAlone.gov, which contains resources for students and guidance for schools seeking to implement the changes required by VAWA. The school resources include a checklist for schools to use in creating the policies and procedures for addressing incidents of sexual misconduct on their campuses. The Department also noted that it will be updating The Handbook for Campus Safety and Security Reporting to reflect these new regulations.
Even thought the final regulations are not effective until July 1, 2015, the statutory changes made by VAWA are currently in effect, and schools must be in compliance. For example, schools were required to comply with the new VAWA requirements as they prepared their annual security reports due to be issued to students and employees no later than this past October 1.
The final regulations implementing the changes made by VAWA can be found here.
These final regulations are nearly identical to the proposed regulations that the Department published in June 2014. The Department received approximately 2,200 comments during the public comment period for the proposed regulations. In response to these comments the Department made a few minor changes with respect to schools' disclosure requirements. The Department also added clarification that a school may remove reports of crimes that have been "unfounded." However, the Department clearly states that it believes this would be a rare situation. Even if a school satisfies the regulatory requirements for deeming a reported crime to be unfounded, the school must report to the Department and disclose in its annual security report the number of crime reports that were unfounded and subsequently withheld from its crime statistics.
During the proposed regulations' public comment period, a number of commenters noted the significant compliance burden that the regulations place on small institutions. For example, the commenters referenced the requirement for institutional disciplinary proceedings in the case of alleged dating violence, domestic violence, sexual assault or stalking. In response, the Department noted that institutions are not making determinations of criminal responsibility but are determining whether the institution's own rules have been violated. The Department further noted that students at smaller institutions should have the same protections as their counterparts at larger institutions. The Department also denied a commenter's request to develop and provide required training at no cost to small institutions.
The Department has published additional resources for schools and students addressing the issues covered under VAWA. The Department created the website NotAlone.gov, which contains resources for students and guidance for schools seeking to implement the changes required by VAWA. The school resources include a checklist for schools to use in creating the policies and procedures for addressing incidents of sexual misconduct on their campuses. The Department also noted that it will be updating The Handbook for Campus Safety and Security Reporting to reflect these new regulations.
Even thought the final regulations are not effective until July 1, 2015, the statutory changes made by VAWA are currently in effect, and schools must be in compliance. For example, schools were required to comply with the new VAWA requirements as they prepared their annual security reports due to be issued to students and employees no later than this past October 1.
The final regulations implementing the changes made by VAWA can be found here.
Wednesday, August 27, 2014
Important Changes for Campus Safety & Security Reporting
Postsecondary schools that participate in the Title IV federal student aid programs face significant additional requirements with respect to the annual security reports due to be issued to students, employees, and prospective students and employees no later than October 1, 2014. Last spring President Obama signed the Violence Against Women Reauthorization Act of 2013 ("VAWA"). This law amended the Clery Act to require that schools compile statistics for incidents of domestic violence, dating violence, sexual assault and stalking (collectively referred to as "sexual misconduct") that occur on or near campus. VAWA also requires that schools disclose certain policies, procedures and programs pertaining to these incidents in their annual security reports. These additional crime statistics and expanded policy and procedure statements must be included this year's annual security reports .
VAWA significantly expanded the amount of details and disclosure that schools must report regarding campus safety and security. Prior to VAWA, schools were required to include information about their policies and procedures regarding incidents of sex offenses in their annual security report. Beginning with annual security reports due to be issued no later than October 1, 2014, schools must now disclose all incidents of sexual misconduct in their annual crime statistics. A school's annual security report must also include policy statements describing the school's programs to prevent incidents of sexual misconduct, and describe the procedures that the school will follow once an incident has been reported. Specifically, the annual security report must address the following areas:
The Department of Education initiated a negotiated rule making process with various constituencies, including student representatives, advocacy groups and schools, to develop regulations to implement the changes made by VAWA. Ultimately, the group reached consensus on the set of draft regulations. The Department published a Notice of Proposed Rulemaking for public comment on June 20, 2014. After completing its review of public comments, the Department is expected to publish final regulations by November 1, 2014. Those regulations would be effective July 1, 2015.
Although the final regulations will not be published until November 1, 2014, schools are nonetheless required to comply with the VAWA changes as they prepare their annual security report due to be issued no later than October 1, 2014. In Dear Colleague Letter GEN-14-13, the Department states that until final regulations are published and effective, schools must make a good faith effort to comply with the VAWA provisions as written. The VAWA statutory language should be used as the basis for revising or developing policies, procedures and programs to be included in the school's annual security reports due to be issued by October 1, 2014.
The VAWA requirements present particular challenges to smaller schools and trade schools, such as cosmetology schools. These schools typically do not have on-campus police or dedicated security forces. The Title IX coordinator at these schools is often the director or another administrator whose primary job functions pertain to school operations. Given the size of the student body, lack of residential student housing and limited school-sponsored extracurricular activities, incidents of sexual misconduct may be infrequent at these types of institutes.
In the event that an incident of sexual misconduct does occur, the school and its team must be ready and able to respond appropriately. For example, under VAWA all participating Title IV schools must have policies and procedures for investigating sexual misconduct claims, and conduct disciplinary hearings upon the reporting of such claims. These hearings must be conducted by school officials who receive annual training on issues related to sexual misconduct and on how to conduct a hearing process that protects the safety of victims and promotes accountability. Even though such claims may be infrequent, even the smallest of Title IV schools must have these policies, procedures and programs in place as required by VAWA.
VAWA significantly expanded the amount of details and disclosure that schools must report regarding campus safety and security. Prior to VAWA, schools were required to include information about their policies and procedures regarding incidents of sex offenses in their annual security report. Beginning with annual security reports due to be issued no later than October 1, 2014, schools must now disclose all incidents of sexual misconduct in their annual crime statistics. A school's annual security report must also include policy statements describing the school's programs to prevent incidents of sexual misconduct, and describe the procedures that the school will follow once an incident has been reported. Specifically, the annual security report must address the following areas:
- The school's educational programs to promote awareness of sexual misconduct;
- Possible sanctions that the school may impose regarding sexual misconduct;
- Procedures that victims should follow if an incident of sexual misconduct has occurred;
- The school's procedures for conducting a disciplinary proceeding in cases of alleged sexual misconduct;
- Information about how the school will protect the confidentiality of a victim;
- Written notification to students and employees about counseling, health, victim advocacy, legal assistance and other services available for victims; and
- Written notification to victims about available accommodations to academic and living arrangements if requested by the victim.
The Department of Education initiated a negotiated rule making process with various constituencies, including student representatives, advocacy groups and schools, to develop regulations to implement the changes made by VAWA. Ultimately, the group reached consensus on the set of draft regulations. The Department published a Notice of Proposed Rulemaking for public comment on June 20, 2014. After completing its review of public comments, the Department is expected to publish final regulations by November 1, 2014. Those regulations would be effective July 1, 2015.
Although the final regulations will not be published until November 1, 2014, schools are nonetheless required to comply with the VAWA changes as they prepare their annual security report due to be issued no later than October 1, 2014. In Dear Colleague Letter GEN-14-13, the Department states that until final regulations are published and effective, schools must make a good faith effort to comply with the VAWA provisions as written. The VAWA statutory language should be used as the basis for revising or developing policies, procedures and programs to be included in the school's annual security reports due to be issued by October 1, 2014.
The VAWA requirements present particular challenges to smaller schools and trade schools, such as cosmetology schools. These schools typically do not have on-campus police or dedicated security forces. The Title IX coordinator at these schools is often the director or another administrator whose primary job functions pertain to school operations. Given the size of the student body, lack of residential student housing and limited school-sponsored extracurricular activities, incidents of sexual misconduct may be infrequent at these types of institutes.
In the event that an incident of sexual misconduct does occur, the school and its team must be ready and able to respond appropriately. For example, under VAWA all participating Title IV schools must have policies and procedures for investigating sexual misconduct claims, and conduct disciplinary hearings upon the reporting of such claims. These hearings must be conducted by school officials who receive annual training on issues related to sexual misconduct and on how to conduct a hearing process that protects the safety of victims and promotes accountability. Even though such claims may be infrequent, even the smallest of Title IV schools must have these policies, procedures and programs in place as required by VAWA.
Tuesday, July 15, 2014
Recent Court Decision Highlights Schools' Responsibilities Under ADA
The Iowa Supreme Court recently determined that a chiropractic school violated a student's civil rights when the school failed accommodate program changes requested by a blind student.
The case involved a blind student at Palmer College of Chiropractic in Davenport, Iowa. The student requested that the school make accommodations for his visual disability. When the school denied the requested accommodations, the student filed a complaint with the local civil rights commission. Ultimately, the Iowa Supreme Court ruled that the school had denied the student's participation in its programs on the basis of his disability, in violation of the Americans with Disabilities Act (ADA) and similar state and local civil rights laws.
The principle question addressed by the Court was whether the student was qualified to participate in the chiropractic program with reasonable accommodation. An accommodation may not be reasonable if it imposes undue financial or administrative burdens on the school, or if it requires a fundamental alteration in the nature of the program offered. Neither party raised the issue of an undue burden with respect to the possible accommodation, therefore the only issue considered by the Court was whether accommodation would constitute a fundamental alteration of the school's program.
The Court recognized that it is appropriate to give some deference to the school's professional or academic judgment when determining whether an accommodation would constitute a fundamental alteration of the school's program. However, the extent to which that deference is appropriate depends upon several factors. The school has an obligation to seek out suitable means of reasonably accommodating individuals with disabilities. The school must submit a factual record indicating that it conscientiously carried out this obligation. Furthermore, schools cannot merely look to accepted academic norms in exploring reasonable accommodations because reasonable alternatives may often involve new approaches or devices beyond the existing accepted academic norms.
The student requested accommodation for certain visual components of the curriculum. The student's proposal included a sighted reader and modifications of practical examinations. The school determined that the student's proposal would not constitute an acceptable accommodation for certain diagnostic portions of program, and that the student would ultimately reach a point after which he would no longer be able to meet the requirements for advancement in the program. After making an additional accommodation request to the school's president without success, the student withdrew from the program.
The school cited various reasons for denying the student's request. It expressed doubt that the student could use a sighted reader to assist with the diagnostic portion of the program, in that this would place too much responsibility on the assistant. The school also stated that the requested accommodation would violate the school's recently adopted technical standards, and that a deviation from such standards would compromise the school's compliance with its accrediting agency.
In ruling against the school, the civil rights commission and the Court found that the school failed to engage in the interactive investigative process required by federal and state disability law. Based on the specific facts, they determined that the requested accommodation would not fundamentally alter the school's curriculum because the school had previously graduated blind students, albeit prior to the school's recent curriculum changes. The court found no evidence in the record that accommodating the student's request would cause adverse actions with respect to the school's accrediting agency. The Court also noted that there are blind medical doctors and medical students. In the Court's view, the school could have done more to determine if there were alternatives available to reasonably accommodate the student through the program.
What can other schools learn from this decision?
Upon receiving a request for a student accommodation, it is critical that the school evaluate the request for academic accommodation on a case-by-case basis. Schools are still entitled to some deference for their professional or academic judgment. However, as shown by the Iowa Supreme Court, this deference will be given little weight if the school fails to conscientiously fulfill its obligation to evaluate the specific request.
Schools must have an effective policy in place detailing the procedures for addressing requests for academic accommodations. Staff members and faculty must be educated to ensure that they understand this policy and their obligations as they relate to evaluating accommodation requests. As part of this policy, schools must designate a Section 504 coordinator to be responsible for processing and evaluating the request. The policy statement should include contact information for students or prospective students seeking an accommodation, a general description of the process used for evaluating the request, the timeline within which the school will respond, and the process by which the student can seek a redetermination or submit a grievance if the request is denied.
Each request for accommodation must be individually evaluated on a fact-specific basis. The student, school administrators, instructors and third party service providers should all be engaged in a collaborative effort to determine whether reasonable accommodations can be made without creating a fundamental alteration to the education program. If the school determines that a reasonable accommodation cannot be made, then it must maintain a detailed account of the student's request, the parties involved in evaluating the request, the alternatives considered, and the specific reasons for determining that the accommodation is not reasonable.
The case is Palmer College of Chiropractic v. Davenport Civil Rights Commission, No. 12-0924., June 27, 2014 - Iowa S.Ct.
The case involved a blind student at Palmer College of Chiropractic in Davenport, Iowa. The student requested that the school make accommodations for his visual disability. When the school denied the requested accommodations, the student filed a complaint with the local civil rights commission. Ultimately, the Iowa Supreme Court ruled that the school had denied the student's participation in its programs on the basis of his disability, in violation of the Americans with Disabilities Act (ADA) and similar state and local civil rights laws.
The principle question addressed by the Court was whether the student was qualified to participate in the chiropractic program with reasonable accommodation. An accommodation may not be reasonable if it imposes undue financial or administrative burdens on the school, or if it requires a fundamental alteration in the nature of the program offered. Neither party raised the issue of an undue burden with respect to the possible accommodation, therefore the only issue considered by the Court was whether accommodation would constitute a fundamental alteration of the school's program.
The Court recognized that it is appropriate to give some deference to the school's professional or academic judgment when determining whether an accommodation would constitute a fundamental alteration of the school's program. However, the extent to which that deference is appropriate depends upon several factors. The school has an obligation to seek out suitable means of reasonably accommodating individuals with disabilities. The school must submit a factual record indicating that it conscientiously carried out this obligation. Furthermore, schools cannot merely look to accepted academic norms in exploring reasonable accommodations because reasonable alternatives may often involve new approaches or devices beyond the existing accepted academic norms.
The student requested accommodation for certain visual components of the curriculum. The student's proposal included a sighted reader and modifications of practical examinations. The school determined that the student's proposal would not constitute an acceptable accommodation for certain diagnostic portions of program, and that the student would ultimately reach a point after which he would no longer be able to meet the requirements for advancement in the program. After making an additional accommodation request to the school's president without success, the student withdrew from the program.
The school cited various reasons for denying the student's request. It expressed doubt that the student could use a sighted reader to assist with the diagnostic portion of the program, in that this would place too much responsibility on the assistant. The school also stated that the requested accommodation would violate the school's recently adopted technical standards, and that a deviation from such standards would compromise the school's compliance with its accrediting agency.
In ruling against the school, the civil rights commission and the Court found that the school failed to engage in the interactive investigative process required by federal and state disability law. Based on the specific facts, they determined that the requested accommodation would not fundamentally alter the school's curriculum because the school had previously graduated blind students, albeit prior to the school's recent curriculum changes. The court found no evidence in the record that accommodating the student's request would cause adverse actions with respect to the school's accrediting agency. The Court also noted that there are blind medical doctors and medical students. In the Court's view, the school could have done more to determine if there were alternatives available to reasonably accommodate the student through the program.
What can other schools learn from this decision?
Upon receiving a request for a student accommodation, it is critical that the school evaluate the request for academic accommodation on a case-by-case basis. Schools are still entitled to some deference for their professional or academic judgment. However, as shown by the Iowa Supreme Court, this deference will be given little weight if the school fails to conscientiously fulfill its obligation to evaluate the specific request.
Schools must have an effective policy in place detailing the procedures for addressing requests for academic accommodations. Staff members and faculty must be educated to ensure that they understand this policy and their obligations as they relate to evaluating accommodation requests. As part of this policy, schools must designate a Section 504 coordinator to be responsible for processing and evaluating the request. The policy statement should include contact information for students or prospective students seeking an accommodation, a general description of the process used for evaluating the request, the timeline within which the school will respond, and the process by which the student can seek a redetermination or submit a grievance if the request is denied.
The case is Palmer College of Chiropractic v. Davenport Civil Rights Commission, No. 12-0924., June 27, 2014 - Iowa S.Ct.
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