Sexual Assault on Campus, Anonymity, and Title IX


January 4, 2017; New York Times and National Public Radio

According to a 2007 study by the National Institute of Justice, one in five female college students (and one in 16 male college students) are sexually assaulted and more than 90 percent do not report the crime. One of the reasons students do not report is fear of retaliation, particularly when the accuser is one of their professors. If the student reports the crime to the college’s Title IX office instead of the criminal justice system, they can remain anonymous—but that can often lead to other problems.

Two University of Kentucky entomology graduate students were separately assaulted by one of their professors. They feared retribution and explored opportunities to report the crime while maintaining their anonymity. One of the students explained their decision:

I just spent a good portion of my life in grad school trying to further my career and if I’m labeled as someone who filed a sexual assault claim against a professor, that could very easily backfire against me. There’s a lot of people in academia who think that there are women who make up stuff like this.

They filed a report in the university’s Title IX office. Title IX is a federal law prohibiting gender discrimination on college and university campuses. Schools failing to follow Title IX risk losing federal funding. Once a report is filed, the office is required to investigate. During the investigation, the accused and accuser remain anonymous. Unfortunately, the investigation and subsequent hearings are fraught with challenges.

One obstacle is that each school’s office has jurisdiction only over its students and personnel. If the accused decides to leave the institution before the hearing is completed, the proceedings end immediately without any reference to the investigation on their record, allowing the accused (assuming he or she were guilty of the offense) to potentially assault additional students at the new school.

Another challenge is how the hearing is decided. Who presides over the hearing varies from school to school and usually doesn’t include officials from the criminal justice system. Title IX mandates the hearing utilize the “preponderance of the evidence” burden of proof. This standard is significantly less than “beyond a reasonable doubt,” which is required in a criminal trial. Nonprofit Quarterly has reported on the controversy surrounding 2011 U.S. Department of Education “guidance” on college sexual assault that has been opposed by some in academia, including one specific letter issued by 28 Harvard Law School professors criticizing the lack of due process in college sexual assault invstigations. Participating in a hearing is often extremely difficult for a survivor of assault because of the stresses that come with proving the activity occurred. By using the lower standard of proof, the hearing puts a limit on any additional pain, trauma, and expense.

In the case of the two University of Kentucky students, the Title IX office scheduled an official hearing after interviewing dozens of people and collecting evidence. But the hearing never occurred because the professor resigned before it could begin. Frustrated, the women reported the assaults to the university’s student newspaper. The media attention led to many additional stories and FOIA requests for the full Title IX report. The students feared their anonymity would be compromised and joined an action by the university to stop the report release. Judge Thomas Clark of the Fayette County Circuit Court plans to issue a ruling in the next two weeks.

Schools that fail to conduct proper hearings can be subject to government complaints and lawsuits. Currently, over 200 institutions are under federal investigation due to complaints connected to sexual violence investigations and proceedings. A better solution might be a society that better supports survivors of sexual assault.—Gayle Nelson

Update: On Tuesday, 1/24/2017 The Judge ruled in favor of the University to prohibit the release of the report to protect the anonymity of the students. The Newspaper states it will appeal the decision.

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America’s Overtested Students: Government Finally Pays a Little Attention


October 25, 2015; New York Times

In a rare display of bipartisan agreement, the president and congressional leaders finally have come to believe that elementary school students spend too much preparing for and filing out standardized tests. The public got there years ago, of course. According to a Phi Delta Kappa International/Gallup poll released this past summer of about 4,500 adults, 64 percent believe there is “too much emphasis on standardized testing” while only 19 percent said there is “about the right amount.” A report by the Council of the Great City Schools (CGCS) found that eighth-grade students spent an average of 2.3 percent of their total classroom time, or 25 hours, taking 112 different standardized tests. Moreover, this figure does not include the time spent administering and preparing to take these tests.

On Saturday, October 24th, President Obama released a ten-page proposalacknowledging the administration’s role in the current over-testing quagmire and calling for schools to limit the amount of time students spend taking standardized tests. The message appearing on Facebook called for capping the time students spend taking standardized tests to two percent of classroom time. It also called for new flexibility in the use of standardized tests to evaluate teacher performance, a requirement that has historically led to anger and frustration by teachers and their unions. Additionally, President Obama promised resources and technical support to school districts and states that explore other assessment tools and more traditional indicators to assess teacher and school performance.

Currently, the nation’s schools are fixated on using standardized tests in an attempt to measure what and how much students are learning. Among other findings from CGCS, the average student takes an average of 112.3 tests between pre-K and 12th grade, taking up more than 250 hours of school time. And since governments, district administrators, and parents place such high emphasis on the test results, students spend many, many additional hours preparing and learning how to take the tests.

School administrators across the country struggle to choose which and how many standardized tests they should administer. In the 2014-5 academic year, students in the 66 largest school districts in the country took 401 “unique” tests. Many of them are “not well aligned” with each other, do not align with college or career-ready standards, and rarely assess students’ understanding of specific content. Additionally, the majority of tests are unable to provide timely recommendations, since teachers can wait as long as four months for results—for example, reporting spring assessment results the following fall. Finally, CGCS found “no correlation” between the amount of mandated testing time and the reading and math scores fourth and eighth graders received on federally required National Assessment of Educational Progress (NAEP) tests.

The origins of the nation’s testing frenzy date to 1965, when President Lyndon Johnson signed the Elementary and Secondary Education Act (ESEA). ESEA lead to a new focus by the federal government on the equality and quality of elementary schools across the country. Although the law was meant to be updated every few years, it did not receive a full overhaul until 2001, when President George W. Bush recreated it into No Child Left Behind (NCLB). Under NCLB, the federal government served as watchdog over the nation’s schools, adding resources and the requirement of testing and accountability. Schools whose students failed to successfully achieve, as measured by standardized test scores, would be “fixed” or closed.

No Child Left Behind was set to expire in 2007, but without new legislation, the federal requirements included in it remain in effect. Currently, Congressional leaders agree Bush’s “tough guy” approach to fix poor functioning schools was not successful, but what the next steps should be remains unclear. Separate models passed the Senate and House, and efforts are underway to develop a comprehensive version that can pass both chambers.

President Obama is not calling for the alteration or elimination of the federal requirement to test students in third through eighth grades annually (and again between the 10th and 12th grades). Additionally, Obama’s call to limit the amount of time students spend being tested will not help school administrators decipher which ones to continue using.

NPQ would love to hear from organizers working in the field of education regarding their approaches to the limiting of overtesting and their positions on that issue.

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NLRB Decisions Add Momentum to “Fight for $15” Minimum Wage


August 27, 2015; New York Times

The Fight for $15 movement began in 2012, as airport workers with wages of $20 an hour plus benefits tried to form a union. Instead, their jobs were reconfigured into minimum wage opportunities literally overnight. Since that time, the national minimum wage has remained at $7.25, and union membership has continued to decline, reaching 11.1 percent of workers in 2014. But on the local level, Fight for $15 has successfully advocated for minimum wage increases in twenty-nine states plus many large municipalities. Additionally, in the last two weeks, two court decisions were published expanding workers right to organize and increasing the jurisdiction of a regulation designed to require employers to pay workers more of a living wage.

Last week, The National Labor Relations Board announced a ruling in favor of unions negotiating on behalf of low-wage workers. The much-anticipated decision will allow workers at franchises (such as McDonald’s) or employed at subcontractors connected to larger employers to negotiate together with workers of other franchises or directly with the large employer. By creating an opportunity for low-wage workers to bargain collectively, the worker gains power and unions can coalesce.

The ruling stems from a dispute between a garbage disposal and recycling company, California-based Browning-Ferris, and its subcontractor, which employed workers to staff the recycling center. Browning-Ferris maintained the right to set criteria for hiring and firing as well as dictating the amount workers would be compensated. At the time of the dispute, workers were voting on whether to unionize. The NLRB panel ruled that since Browning-Ferris “maintained control of the workplace,” the workers were joint employees of the subcontractor and Browning-Ferris. Therefore, Browning-Ferris could not insulate itself from the legal responsibilities it had to the workers by creating a subcontractor employer. By acknowledging this relationship, the Board allows workers to sue the corporation, which has more resources, rather than a subcontractor that often has less.

Through this decision, the Board modified the employer-employee relationship developed in the Reagan era of the 1980s. In the past, a company had a relationship with a worker only if it had “direct and immediate” control over the working environment. Now, the parent company has a responsibility to the worker even it if only requires the subcontractor to use certain software that limits the number of hours or length of a workers’ shift, or maintains the right to control such workplace conditions but does not exercise them. An appeal is expected, but although a win might only apply to a particular franchisee or division, it would increase the leverage of workers at other locations.

The ruling follows a decision by the Washington State Supreme Court the week beforein favor of workers at the Seattle-Tacoma International Airport, located in the small community of SeaTac. In 2013, unions and nonprofits fought successfully for Proposition #1, making SeaTac the first city in America to require employers to pay workers a minimum of $15 an hour. Airlines and their contractors argued the proposition does not apply to the international airport, since it is under the jurisdiction of the Port of Seattle rather than the city. The Court majority ruled that the Port of Seattle only maintains control of airport operation, and as long as Proposition #1 does not “interfere” with operations, it is enforceable.

The Fight for $15 began during the Great Recession and quickly expanded through a series of strikes by fast-food workers frustrated by the growth in low-wage employment and the increase in the cost of living in many cities. Many outside of the movement often incorrectly stereotype the minimum wage worker. Currently, 56 percent of workers earning the minimum wage are women and 53 percent are white. Additionally, 53 percent of these workers have their high school diploma and only 33 percent are under the age of 25. With the latest court decisions, union membership may grow, further expanding the movement’s power.

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The High Cost of Sexual Assaults on College Campuses


It is estimated that one in five women are sexually assaulted during their years as college students. The U.S. Department of Education reported that 2013 saw over 5,000 forcible sexual offenses on universities and colleges, and a recent study provides evidence that the actual number of assaults may be six times higher.

In addition to the horrors that sexually assaulted students face, these crimes are placing a financial cost on university and college systems as well. Colleges with high profile sexual assaults also have to deal with such consequences as fewer applications, lowered alumni donations, and loss of funds provided by the Department of Education (DOE). For example, the University of Virginia saw its first decrease in 12 years in its number of applicants after a discredited story ran in Rolling Stone. And Dartmouth saw a fourteen percent drop in applications last year after students protested the school’s treatment of a campus sexual harassment and hazing.

Even more significant, universities facing scandals may lose funding from the DOE. Therefore some leaders claim universities are overcorrecting by unjustly expelling those accused. Faculty at Harvard University and the University of Pennsylvania submitted letters to their administrators denouncing new sexual violence policies utilizing a preponderance of the evidence standard in sexual violence incidents. This standard, required by the DOE, is substantially lower than beyond a reasonable doubt, the standard used by courts in criminal legal actions.

On June 8, 2015, student James Vivenzio filed a complaint in Pennsylvania state court against his fraternity and his school, Penn State. In it, he alleged Kappa Delta Rho possessed a Facebook page containing photos of drunk and unconscious nude women, some of whom looked like they were being sexually assaulted. In addition, the complaint states those pledging the fraternity were given alcohol and drugs, allegedly to facilitate sexual assault and abuse. The suit is also filed against the university for failure to act when Vivenzio reached out to an administrator about the incidents over a year before.

Although Vivenzio isn’t requesting a specific dollar amount, other sexual assault cases against colleges and universities have led to settlements and verdicts from thousands to millions of dollars. For example, in July 2014, the University of Connecticut paid one of the highest reported settlements for a sexual assault lawsuit, $1.3 million, which included $900,000 to a female student who claimed she was cut from the hockey team after being raped by a male hockey player.

In the last five years, the number of sexual assaults at college campuses has skyrocketed. Currently, 118 schools are under federal investigation by the U.S. Department of Education (DOE) for alleged civil rights violations of Title IX related to the handling of sexual assault incidents. At a time when resources have never been harder to raise, universities are diverting millions from education to fund settlements and defend lawsuits. This epidemic is leading schools of higher education to explore a number of difficult issues: how to define consent, how to punish those responsible, and how to measure the reliability of the accusers. At Penn State, a sexual assault and harassment task force developed a 267-page report outlining eighteen recommendations, including enhancing resources at the university’s smaller campuses and disseminating a campus climate sexual assault survey.

At the same time, some government leaders believe schools are hiding or minimizing assaults in an attempt to avoid scandal. These beliefs are based on a recent study compiled by the U.S. Senate Subcommittee on Financial and Contracting Oversight finding 41 percent of colleges have not conducted any investigations of sexual violence in the past five years. Therefore, a bipartisan group of U.S. senators introduced the Campus Accountability & Safety Act in February. If passed, the law would fine colleges and universities up to $150,000 for failure to submit detailed sexual violence reports. In addition, universities that refuse to act in accordance with the legislation could be fined up to one percent of the school’s operating budget.

Recently, United Educators, the higher education insurance company, began offering insurance to cover sexual assault payouts and this appears to have become a disturbingly necessary cost of “doing business.” Between 2006–10, the company has paid out $36 million on behalf of its 1,200 member universities. Seventy-two percent of the settlements were provided to parties suing the schools due to sexual assault incidents.

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Climate Change Activists File Innovative Class Action Suit against Dutch Government


Knowing the long-term effects climate change will have on the Netherlands and the world, the nonprofit Urgenda concluded it could not wait for its government to act. In November 2012, it filed a groundbreaking class action suit. In it, their attorneys used current human rights and tort law to claim the Dutch government is placing human life in danger by failing to reduce carbon emissions. If they are successful, some experts believe it will begin a major shift in environmentalists’ efforts to reduce carbon emissions.

Although many associate the Netherlands with windmills and bicycles, citizens rely heavily on coal-powered utility plants for most of their electricity. Additionally, the Dutch government’s goal of reducing emissions is far less ambitious than its European neighbors. At the same time, the country will be critically affected by the effects of climate change, since it is located three meters below sea level.

To force their government to act, an innovative class action lawsuit was filed by the Dutch nonprofit Urgenda on behalf of slightly less than 900 citizens and against the government of the Netherlands. The suit contends the Dutch government is not doing enough to reduce greenhouse gas emissions that cause climate change. On April 14th, the suit was heard by a district court in The Hague. If the court rules in the class’s favor, it will force the Dutch government to execute policies that will reduce emission by a minimum of 25 percent below 1990 levels by the year 2020.

The suit hinges on whether the rising of the Earth’s global temperature by 2 °C will cause conditions dangerous to human life. The Intergovernmental Panel on Climate Change (IPCC) created this benchmark for developing nations. The Panel is a scientific body created by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) in 1988. Its mission is to provide “the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socioeconomic impacts.” The organization evaluates scientific, technical and socioeconomic information to develop a comprehensive understanding of the effects of climate change on the planet.

The class was originated by the Dutch nonprofit Urgenda. Urgenda, abbreviated from “urgent agenda,” is a leader in developing new methods of fighting climate change. Before filing the suit, the organization, led by its founder Marjam Minnesma, created a campaign to introduce solar panels to a large number of individual consumers. When the campaign was completed, the organization negotiated a deal with Chinese manufacturers for 50,000 panels.

Many of the members of the class have changed their lifestyle to limit their individual carbon emissions. They ride bicycles on a daily basis and heat their houses using solar panels. Unfortunately, they know their individual actions alone will do little to change the direction of climate change. They are hoping this suit will develop into a large movement to change carbon emission.

To build the movement, Urgenda spent critical resources translating research and court documents into English and posting them online. A similar class action suit with over 8,000 members is pending in Belgium. Additionally, lawyers in Australia, Canada, and the United States are investigating opportunities in their own countries.

A decision in the suit filed by Urgenda is expected by the end of June.

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Who Do University Police Report To?


Most large schools of higher education employ their own school security personnel, who often take the place of local police officers on campuses and have similar responsibilities. State colleges and universities are state entities, and private colleges and universities receive government funds. States have public records laws, much like the U.S. Freedom of Information Act (FOIA), requiring government bodies to provide records to citizens and press. However, courts and administrative bodies have not resolved whether colleges and universities and their contractual agents—like the campus police—are covered by public record laws, leading to situations where some students are protected at the expense of others and the public at large.

On January 15th, ESPN filed a lawsuit against the University of Notre Dame alleging the school is violating Indiana’s public record laws by withholding police incident reports linked to student-athletes involved in potential campus crimes. The university claims their security personnel are not required to provide these records because they are employed by the university rather than a government agency. Indiana administrative rulings and court decisions have not consistently ruled on whether university and college security police are covered by these laws.

During this same period, ESPN requested similar records from the Tallahassee Police Department. On December 24th, the Tallahassee Police Department released hundreds of records involving Florida State University athletes. The request was related to a story in the New York Times documenting an automobile hit-and-run incident taking place in the early hours of October 5, 2014, the day after a FSU football game victory. The driver of one of the cars was FSU quarterback Jameis Winston, who hit another car driven by a teenager on his way home from work. Both cars were totaled. Instead of waiting at the accident scene, Winston and his two passengers, also athletes, left the car and fled.

The incident happened off-campus, and the Tallahassee police reached out to university police and its athletic department. The outcome: Although the athletes fled the scene, Winston was driving on a suspended license, and there was evidence of alcohol consumption by the athletes, police dismissed the episode as “too minor” to file a report or enter the accident on the police online database.

Reporters request university and college records for reasons beyond activities of students. In the fall of 2014, a University of Delaware student newspaper reporter attempted to get information on the university’s plan to partner with a private company to build a large power plant. Delaware public information laws exempt public universities, therefore the reporter was unable to get any information on the university’s activities. The outcome: University activities remain unchecked and the student reporter was unable to learn how to utilize state public record requests, although she did learn their limitations.

Pennsylvania public information laws have similar exemptions as Delaware’s. Last June, the Pennsylvania senate unanimously passed legislation to limit these exemptions. Not surprisingly, these efforts were met by heavy lobbying activities by the state’s universities and colleges.

One state with broad public information laws is Michigan. Michigan’s Freedom of Information Act explicitly covers public colleges and universities. Exemptions in the law are very specific, protecting individual students’ loan records, general testing documents, and even some materials related to applications of those interested in becoming a school’s president.

Many universities and colleges are the size of towns or small cities. Rarely does a bright line separate a campus from the town it’s connected to, and there’s even less of a line defining school police jurisdiction. Without public record law requirements, university and college activities are easily hidden, creating potential conflict of interest and less security for all.

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