Legal issues

Sexual assault claims can be costly

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United Educators reviewed 1,000 incidents of campus sexual assault and found that, in cases with litigation, the claims can cost institutions an average of $350,000.

Judge blocks enforcement of Trump's entry ban

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Judge's ruling cited impact on higher education; some students who were blocked from the U.S. a week ago are returning.

Facebook comments legitimate grounds for student's removal from college program, court rules

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Federal appeals court rules that Central Lakes College acted legally when it kicked a student out of a nursing program for comments deemed unprofessional and threatening.

Court rules University of California, San Diego, treated student accused of cheating unfairly

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UCSD accused a student of copying from another person's midterm exam, but officials wouldn't reveal the identity of the other student or whether the two were sitting near each other.

Proposed new overtime pay regulations could negatively impact colleges and their employees (essay)

Proposed rule changes to the Fair Labor Standards Act (FLSA) are generating significant concern on college and university campuses across America, including mine. The U.S. Department of Labor recently sent those changes, which would raise the salary threshold for those employees who are guaranteed overtime pay from $23,660 to $50,440, to the White House’s Office of Management and Budget for final review. If approved, they will have deleterious and perhaps even dire effects not only on higher education institutions but many of their employees as well.

As president of Thomas More College, a small faith-based college in Kentucky, I worry that the changes would take a grave toll on institutions like mine that are enrollment and tuition driven. They could also significantly limit opportunities for young people in our society to receive entry-level positions at our colleges and universities.

I understand the reasoning for the proposed changes and, in fact, I would love to be able to pay our employees more money. But this proposal is just too drastic in such a short period of time, and our institution simply can’t afford it.

I received my start as a volunteer football coach for my alma mater, Mercyhurst University, after receiving my law degree. I chose to forgo a lucrative legal career to pursue my passion of making a difference in the lives of young men in their formative years. My $20,000 salary during this time came from academic advising and work in residence life. From this position, I moved into different roles in student life, academic advising, recruiting and fund-raising. Those positions led me to my present post of college president at a college very similar to my alma mater. Because of that first job as a coach -- albeit at a low salary -- I was able to launch my career in higher education.

Yet the proposed changes would nullify such opportunities for thousands of people just starting out by essentially removing entry-level positions that recent college graduates rely on. With beginning base salaries of $50,440, employers nationwide, including colleges and universities, would have to hire workers with previous experience and a greater knowledge of the position than a first-time job applicant. In addition to the removal of entry-level positions, midrange positions would need salary adjustments as well, so that employees at that career level are not making less than those previously considered to be entry level. Such salary adjustments across the board would significantly pressure the budgets of virtually every academic institution.

I know firsthand that one department will be greatly affected: the athletics department. Colleges like mine do not have athletics simply because we enjoy them; we have them because they drive enrollment and are therefore necessary for our survival. Despite public belief that coaches of intercollegiate athletic teams earn huge salaries, most coaches are modestly compensated for jobs that often include weekends and nights. Coaches know this going into the position -- they accept relatively low salaries because they have an immense passion for the game and desire to mold student-athletes. Their passion for the sport and for the growth of students allows athletic programs to survive and thrive. The proposed changes would result in tough decisions having to be made, including the potential cutting of small-roster sports and other administrative positions within the department.

Various colleges and universities have already begun looking at the potential impacts the FLSA rule changes could have specifically on them. The state university system of Florida has concluded that the proposal will affect 6,500 workers to the tune of $62 million in increased budget expenditures. Indiana University similarly has found that budget increases would be upward of $15 million annually. Recently, while speaking at a conference with a human resources administrator at a large research institution, I learned that university leaders there have forecast an annual budgetary increase of $19 million.

These numbers are substantially larger than ours: we project our budget would increase by $1.4 million each year. But, given that is more than a 12 percent annual increase, the relative impact on our small college would be much more severe. An increase of that magnitude could potentially have catastrophic effects on us and other small institutions nationwide.

The basic fact is that colleges, especially small, enrollment-based institutions, will not be able to absorb the extremely large additional costs associated with the current proposal. It is thus crucial that the federal government consider reasonableness and time in developing the final rule. A more modest salary adjustment makes much more sense if colleges are to avoid untenable budget pressures and, in some cases, even financial collapse. A proverb elucidates this concept, saying, “It is better to take many small steps in the right direction than to make a great leap forward only to stumble backward.”

The proposals of the College and University Professional Association for Human Resources and 18 other higher education groups that called for an increase to either $29,172 or $30,004 are much more realistic and reasonable. We need to raise salaries incrementally and in a way that is financially manageable rather than saddle colleges with a hike so high that they are destined to fail.

David A. Armstrong is president of Thomas More College in Kentucky.

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Historian discusses his new book on the way courts have treated issues of college access

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Historian discusses his new book on how courts in the United States have treated cases involving access to higher education.

Judge Blocks Law School From Terminating Tenured Professor

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The Charleston School of Law says it can't afford to pay a tenured professor. But a judge is blocking her termination as her lawsuit works its way through the courts.

Campuses need to be prepared to produce sexual assault surveys (essay)

“The first step in solving a problem is to name it and know the extent of it -- and a campus climate survey is the best way to do that.” -- The White House Task Force to Protect Students from Sexual Assault

Campus climate surveys have become an important tool for universities in the battle against sexual assault on campus.

The White House Task Force to Protect Students from Sexual Assault, in its April 2014 report “Not Alone,” gave the higher education community a strong hint by writing: “We urge schools to show they’re serious about the problem by conducting the survey next year.”

The task force characterizes regular climate surveys as “a best-practice response to campus sexual assault” and recommends that schools use them to examine the prevalence and incidence of sexual assault on campus, and to assess students’ perceptions of a university’s response to sexual assault.

In the wake of the task force’s report, although climate surveys are not yet required by law, colleges would be ill advised to ignore the drumbeat of support for climate surveys by the federal government.

Here are five things you should know about campus climate surveys.

1. They Will Be Mandated. The task force’s suggestion that schools conduct climate surveys is one of several signals that surveys soon will be required as part of a Title IX/Clery Act compliance program.

Beginning with the University of Montana in 2013, the Department of Education’s Office of Civil Rights has made conducting climate surveys a standard requirement in resolution agreements it enters into with schools to resolve Title IX complaints. In addition, a bipartisan group of legislators recently reintroduced the Campus Accountability and Safety Act, S 590, HR 1310. This bill would require schools to administer “a standardized online survey of students regarding their experiences with sexual violence and harassment” every two years.

Thus, whether de jure or de facto, institutions can count on soon being required to conduct climate surveys.

2. Model Surveys Are Being Developed. The task force included a detailed campus climate survey tool kit with the “Not Alone” report, including sample questions, and selected Rutgers University to pilot the survey. Rutgers has been posting what its team has been learning here and plans to publish a revised survey suitable for widespread use.

The Association of American Universities, an organization of 60 U.S. research universities, is conducting its own survey with 28 members, which will be identical for each participating campus except for five questions that will address campus-specific issues.

Since each campus has a unique culture, it is important to keep in mind that the examples developed by other schools and groups are just that -- examples. Some institutions opted out of the AAU survey because they preferred to conduct a survey tailored to their particular cultures.

Another institution, the University of Alaska, made sure to include questions addressing online harassment in its March 2015 survey, due to its large online-learning community. Colleges with limited resources can begin with the task force’s sample survey (or another model) and adapt the questions to their unique settings to assure the most meaningful results possible.

3. Participation Is a Challenge. CASA would require schools to have an “adequate, random and representative sample size of students” complete the biannual campus surveys. This vague standard may be challenging; an informal review of the results of recent school surveys indicates that 19-25 percent of students participated. Obvious questions exist about whether the students who participate represent a true cross section or are motivated by personal experience with sexual misconduct.

Institutions will have to work creatively to promote the surveys to an often apathetic student body (some designs include incentives for participation, such as nominal gift cards and drawings for larger prizes).

4. How the Surveys Will Be Used Remains an Open Question. A poll of 620 college presidents conducted by Inside Higher Ed and Gallup in 2014 revealed discomfort with mandated surveys, which is likely grounded in several factors.

First, climate surveys are still works in progress (only 21 percent of the presidents indicated that their schools had constructed a survey within the previous two years), and their validity and reliability remain unproven.

Second, as expressed by the American Council on Education in comments on CASA last year, it is unclear for what purpose a climate survey would be used: “Is it intended as a consumer information tool, an institutional improvement tool, an enforcement mechanism or some combination of all three?” The answer to this question could have a substantial impact on how a survey is designed and on how schools and others react to its results.

Underscoring concerns about how results would be used, CASA would require surveys to include questions about how reports of sexual violence were handled, and results to be published by the individual institutions and the Department of Education.

The publication of survey results could have wide-ranging implications -- from reputational harm to enforcement activity. But one can legitimately question whether, for example, negative responses in an anonymous survey with limited participation would truly reflect a systemic problem or an isolated instance.

Other questions relate to the degree, if any, that OCR and courts would consider schools to be “on notice” of a problem reflected in survey results, and the validity of side-by-side comparisons of schools using different survey instruments.

Ideally, these questions will be addressed before surveys are mandated but, as written, CASA would require schools to complete a survey within one year of its enactment.

5. Climate Surveys May Uncover Blind Spots. Despite the potential pitfalls with mandated climate surveys, they can generate valuable data points for schools looking to learn about the success of their efforts to combat sexual violence.

For example, in late January, George Washington University released the results of a 2014 survey that revealed that 80 percent of the students responding did not know how to contact the Title IX coordinator or the university’s sexual assault response team.

The survey results may simply reflect a general challenge in communicating sexual violence resource information to students -- the information might not be important to students until it is needed.

Still, this eye-opening result gives GW valuable insight and will encourage it to communicate the information through additional or alternative means.

Consider these five issues as you plan for your own campus climate survey.

Scott A. Coffina is a partner in Drinker Biddle & Reath’s white collar criminal defense and corporate investigations practice group. Rachel M. Share is a litigation associate at Drinker Biddle & Reath.

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Colleges settle free speech lawsuits as FIRE promises more litigation

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Three colleges sued over charges that they were limiting free speech rights have settled by paying out funds and changing policies.

U.S. says records of athlete accused of assault should not be released

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The U.S. Department of Education says universities should honor student privacy laws, even when they would block the reporting of how they discipline students accused of sexual assault.

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