MHA URMIA Conference Presentation 2012

Everything a Risk Manager Should Know about Title IX, Clery & Threat Assessment

Dr. Gary J. Margolis, MHA

Michael N. Webster, MHA/McDaniel College

Post Conference Workshop

Guiding You Across the Ocean of RiskURMIA 2012 • Providence© Margolis Healy & Associates. All Rights Reserved.

Agenda

• Introductions

• Clery

• Title IX

• Threat Assessment


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THE CLERY ACT

All you need to know about…


Agenda

• Clery Act 101• Trends in Dept. of ED Program Reviews• 5 Ways to Immediately Enhance

Compliance


• 1986: Jeanne Clery murdered at Lehigh University• 1988: Pennsylvania Act 73• 1990: Federal Crime Awareness & Campus Security Act • 1992: Campus Sexual Assault Victims’ Bill of Rights • 1994: Campus Security Act Regulations• 1998: Higher Education Act Amendments• 1999: Clery Act Regulations Issued• 2000: Campus Security Statistics Website• 2002: Campus Sex Crimes Prevention Act• 2005: ED’s Clery Handbook Published• 2008: Higher Education Opportunity Act 2008• 2009: Final Campus Safety Regulations• 2010: Handbook for Campus Safety & Security Reporting• TBD: Campus SaVE Act

Clery Act 101 (for the rest of us)


•A consumer rights bill

• Covers Security, Fire Safety, and Missing Students (only residential are required).

•An institutional responsibility

- Not JUST campus public safety

•Campus-wide collaboration and cooperation are essential

What is this thing called “Clery?”


• Publish & distribute an Annual Security (Fire Safety) Report w/various policy statements, policies and statistics (October 1)

• Submit crime statistics to U.S. Dept. of Education

• Provide timely warning and emergency notifications to the campus community

• Maintain a public, daily log of reported crimes and fires

• Inform prospective students & employees about the Annual Security (Fire Safety) Report

Clery Act 101


• Significant increase in # of Program Reviews - 2011, ED issued 2x’s the # of Final

Programmatic Review Determination it issued in the previous 2 years

• Compliance Team more robust = greater capacity (and they’re GOOD)

• Reviews more comprehensive (includes Part 86 compliance in addition to Clery)

Trends


• If you have a problem, you have a PROBLEM!

• ED proactively focuses on campus incidents and local, regional, national headlines (studentaid.ed.gov/about/data-center/school/clery-act); complaint, media event, audit, cooperation with FBI CJIS- Virginia Tech- Bowie State University- Morgan State University- Penn State- University of Montana

ED – Coming Soon to a Campus Near You!


5 WAYS TO ENHANCE COMPLIANCE


1. Formally appoint a Clery Act Compliance Coordinator - Size doesn’t matter - Processes, on-going data gathering and

campus collaboration demand focus- At a minimum, 50% of time dedicated to Clery- Coordinator leads Clery Act Committee

• Formally chartered group of administrators should guide the institution’s Clery compliance activities



2. Review your required policies- Ensure policies and policy statements are

updated and represent your current practices- Review at least annually- Emphasis on policies governing Timely

Warning Reports, Campus Sexual Assault Programs, Emergency Notifications and Missing Students



3. Identify and train your campus security authorities

- Use org. chart to identify those officials who have significant responsibilities for students and campus activities. Deans, directors, and coaches are a start

- You likely have hundreds, possibly thousands

- Conduct in-person training for Tier 1/Tier 2 CSAs

- On-line for others



4. Failsafe your crime and arrest/referral data collection process

- Flowchart your process for collecting data from required sources

- Are there offices that have disciplinary systems that you’re not aware of, or have confusion over, what has to be reported?

- Do you have the necessary forms to facilitate data collection?

- Test your system often



5. Identify and track all of your safety awareness and crime prevention programs

- Give credit where credit is due; many ASRs omit the programs offered by other campus departments

- Maintain an inventory of all campus programs and update as needed.

- Ensure you list both type and frequency of all programs in your ASR

- Don’t go to MSU




TITLE IX



Title IX

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.


Scope of Coverage

• Title IX protects students from sexual harassment in an institution’s education programs and activities, including:

- All academic, educational, extracurricular, athletic, and other programs of the institution

- On-campus, off-campus, in transit, sponsored at other locations, etc.


Scope of Coverage

• Title IX protects third parties from sexual harassment or violence in an institution’s education programs and activities- E.g.: Title IX protects a high school student participating in

a college’s recruitment program, a visiting student athlete, and a visitor in a school’s on-campus residence hall

• Title IX prohibits discrimination/harassment by faculty, staff

• Title IX protects employees from sexual harassment


Civil Remedies

• Title IX nondiscrimination obligations may be enforced in court by individual or class actions

• “deliberate indifference” standard applies

• Compensatory damages and injunctive relief available

• Plaintiff’s attorney’s fees and costs available

• State nondiscrimination statutes may provide additional remedies


Sexual Harassment Definition

• Unwelcome conduct of a sexual nature

includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.

• Student-to-student harassment:

creates hostile environment if conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.

• The more severe the conduct, the less need there is to show a repetitive series of incidents to prove hostile environment, particularly if the harassment is physical (e.g. rape=hostile environment)


Sexual Violence Definition

• Sexual violence is a form of sexual harassment prohibited by Title IX

- Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol

- An individual also may be unable to give consent due to an intellectual or other disability

- May include rape, sexual assault, sexual battery, and sexual coercion


Summary of Institutional Obligations

• If institution knows or reasonably should know about sexual harassment that creates a hostile environment, Title IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects

• Must designate Title IX Coordinator, publish notice of nondiscrimination, and adopt and publish grievance procedures



• Train employees to report harassment to appropriate institutional officials

• Train employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properly

OCR examples: “teachers, school law enforcement unit employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.”



• Investigate complaints adequately, reliably and impartially

• Provide grievance procedures that promote prompt, equitable resolution of complaints

• Undertake education and prevention efforts


- Comprehensive victim resources

- Development of specific sexual violence prevention materials that:

• Include institution’s relevant policies, rules and resources

• Are incorporated into employee handbooks and student, student-athlete and student group handbooks

- Regular assessment of student activities

Education & Prevention Efforts


Education & Prevention Efforts

• Should also include incorporation of awareness and reporting training into:

- Orientation programs for new students, faculty and staff

- Training for resident advisors

- Training for student athletes and coaches

- Institutional assemblies


Awareness & Reporting Training

• Should cover:- Definitions of sexual harassment/violence

- Institution’s policies and disciplinary procedures

- Consequences for violations

- Encouragement of reporting to institution and/or law enforcement

- Encouragement of reporting even if alcohol/drugs involved (student safety is primary concern)


• Who conducts investigations? How are they trained?

• How are your hearing boards trained to hear cases of sexual and gender violence?

• How are you educating the various demographics in your community?

• Are your policies and communications consistent?

TOP CHALLENGES

Threat Assessment



• Overview of Threat Assessment

• What could get you trouble?

• Strategies to address

Agenda


• USDOJ COPS Office

• Dr. Gene Deisinger, VA Tech/Sigma TMA

• Dr. Marisa Randazzo, Sigma TMA

• Jeffrey Nolan, Esq., Dinse Knapp & McAndrew, PC

Acknowledgement


Overview of Threat Assessment ProcessThreat assessment is a four-part process that is designed to:


Threat assessment is a process that focuses on:

The Threat Assessment Process


These efforts include a commitment to:

- Prevent violence - Identify persons of risk - Intervene with developing concerns - Respond to acts of violence - Recover from an event

Efforts to Promote Safe Campuses


Not having a recognized process

Not following your process

What could get you in trouble?


• A number of resources have set the standard of care for behavioral threat assessmentLegal mandates (e.g., VA, IL)US DOJ COPS OfficeThe IACLEA Blueprint for Safer Campuses

(IACLEA Special Review Task Force 2008)Reports synthesized in the Blueprint

Using a recognized process


• “A Risk Analysis Standard for Natural & Man-Made Hazards in Higher Education Institutions” (ASME Innovative Technologies Institute), approved by American National Standards Institute (ANSI) in 2010

• Workplace Violence Prevention and Intervention American National Standard (2011) (ASIS & Society for Human Resource Management



• Does the campus know that the team exists?

• Mission and function clear?• Mechanisms for reporting and

consultation?• Competency of investigations?



• Creating a new habit – exercising your process

• Not defaulting to old habits - active and regular outreach

Follow your process


What is the institution’s obligation to share information with outside entities when student, faculty, staff no longer affiliated?

•Tucson Shooting

•Aurora Shooting

Current issues


• Assurance role

• Develop and public FAQ on threat assessment for the community

• Advocate for training

• Facilitate policy consistency

• Address documentation challenges

Role of the Risk Manager


Resources

• Campus Attacks: Targeted Violence Affecting Institutions of Higher Education U.S. Secret Service, U.S. Department of Education, Federal Bureau of Investigation by Diana A. Drysdale, William Modzeleski, & Andre B. Simons (2010)

• The Handbook for Campus Threat Assessment & Management Teams by Gene Deisinger, Ph.D., Marisa Randazzo, Ph.D., Dan O'Neill & Jenna Savage (2008)

• Implementing Behavioral Threat Assessment on Campus: A Virginia Tech Demonstration Project by Marisa Randazzo, Ph.D., & Ellen Plummer, Ph.D. (2009).

• Campus Threat Assessment and Management Teams: What Risk Managers Need to Know Now (Nolan, Randazzo & Deisinger) URMIA Journal, 2011

• US DOJ COPS Office / Margolis Healy: www.campusthreatassessment.org

• SIGMA Threat Management (www.sigmatma.com)

• Threat Assessment Teams for Troubled Students: Putting the Pieces Together (United Educators; www.ue.org)

http://www.campusthreatassessment.org/

http://www.sigmatma.com/


• Regulatory compliance tool for Clery, Title IX and Threat Assessment

CAMPUS SENTINEL

QUESTIONS


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