HRW Higher Ground

On October 9, 2020, the Department of Education released brief guidance rescinding the 2016 edition of its Handbook for Campus Safety and Security Reporting a.k.a. the Clery Handbook. The Department’s announcement constitutes a drastic shift in its own interpretation of the role the Clery Handbook and Department guidance should play in Clery compliance and enforcement. In this first of a two-part episode, John Graff breaks down the October 9 announcement, a 2014 Senate hearing addressing the Department’s enforcement of its own guidance, the 2015 Recalibrating Regulation of Colleges and Universities, Report on the Task Force on Federal Regulation in Higher Education, two recent media opinion pieces, all of which help us understand the Department’s October 9 action and Clery compliance going forward. In part two, John will analyze the new replacement guidance in light of the material discussed in part one with an eye toward laying out what Clery compliance likely will look like during 2021.  

• Department of Education Announcement Rescinding Clery Handbook  (October 9, 2020)
  https://ifap.ed.gov/electronic-announcements/100920RescissionReplace2016HandbookForCampusSafetySecurityReporting
• Recalibrating Regulation of Colleges and Universities, Report on the Task Force on Federal Regulation in Higher Education (2015) https://www.help.senate.gov/imo/media/Regulations_Task_Force_Report_2015_FINAL.pdf
• June 26, 2014 Senate Hearing on Campus Sexual Assaults
  https://www.c-span.org/video/?320167-1/sexual-assault-college-campuses
• Opinion: It’s Time to Reform the Clery Act https://www.insidehighered.com/views/2020/05/15/clery-act-does-little-improve-campus-safety-even-during-pandemic-opinion 
• Opinion: Clery Act Wastes College and University Resources https://www.campussafetymagazine.com/clery/opinion-clery-act-wastes-college-and-university-resources/
• The Clery Act and Overseas/Distance Study: New Developments and Compliance Guidance, 2016 Edition, Joseph Storch, updated September 26, 2016 http://www.legal.gatech.edu/sites/default/files/documents/nacuanote-cleryactabroadpdf.pdf
• Should I Stay or Should I Go?, Jake New, Inside Higher Ed (December 9, 2014)
  https://www.insidehighered.com/news/2014/12/09/students-faculty-dont-always-react-quickly-emergency-alerts

COVID-19, social and political tension, Department of Education Investigations, and a little more on Jerry Falwell. 

John Graff, Scott Schneider, and special guest Josh Nolan of Bricker & Eckler LLP break down recent news about Department of Education investigations into campus free speech, an Executive Order about diversity trainings of federal contractors, and a Department of Justice lawsuit about admissions practices.  

We also chat about the overwhelming flood of issues student affairs professionals have to confront in today’s world, and our great respect for those professionals and the mission they serve.  And because we are about higher ed legal issues AND  rock and roll, we acknowledge the recent passing of the legendary Eddie Van Halen.

• 3 Universities Face U.S. Inquiries Into Free Speech Controversies: (Chronicle of Higher Education, October 1, 2020):  https://www.chronicle.com/article/3-universities-face-u-s-inquiries-into-free-speech-controversies?cid2=gen_login_refresh&cid=gen_sign_in
• Executive Order on Combatting Race and Sex Stereotyping (September 22, 2020):  https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/
• Justice Department v. Yale (Inside Higher Ed, August 17, 2020):  https://www.insidehighered.com/admissions/article/2020/08/17/justice-department-threatens-yale-lawsuit
• Justice Department Sues Yale (Inside Higher Ed, October 9, 2020): https://www.insidehighered.com/quicktakes/2020/10/09/justice-department-sues-yale
• Eddie Van Halen, Hall of Famer Who Revolutionized the Guitar, Dead at 65 (Rolling Stone, October 6, 2020): https://www.rollingstone.com/music/music-news/eddie-van-halen-dead-200051/

At no time in U.S. history has higher ed faced so many simultaneous challenges as it does now. Race relations, social issues, the free speech debate, scandal, law enforcement challenges, Department of Education enforcement, a new Title IX regulation, and COVID-19. Higher education has been confronted with enterprise-wide threats due the coronavirus pandemic, which have become significantly more complex in light of the many other quickly evolving issues that test the resources of an institution. In this episode, Scott Schneider, joins me to discuss the complexity of higher ed’s COVID-19 crisis in light of other rapidly developing events and the need to learn from the recent past to get ready for the near future. We also discuss how we might go about handling a scandal crisis from the perspective of in-house counsel.

Media mentions:

• George Washington University Professor Who Lied About Being Black Resigns https://www.chronicle.com/article/george-washington-u-professor-who-lied-about-being-black-resigns.
• Is Academe Awash in Liberal Bias https://www.chronicle.com/article/is-academe-awash-in-liberal-bias
• Falwell Resigns Following Reports of Tryst. Or Does He? https://www.chronicle.com/article/falwell-reportedly-resigns-from-liberty-after-reports-of-tryst-involving-former-pool-attendant
• West Virginia U. President Apologizes for Not Wearing Mask https://www.chronicle.com/article/live-coronavirus-updates-heres-the-latest
• Opinion: It’s Time to Reform the Clery Act https://www.insidehighered.com/views/2020/05/15/clery-act-does-little-improve-campus-safety-even-during-pandemic-opinion
• Opinion: Clery Act Wastes College and University Resources https://www.campussafetymagazine.com/clery/opinion-clery-act-wastes-college-and-university-resources/
• UNC-Chapel Hill Fined $1.5 Million for Clery Violations https://www.campussafetymagazine.com/clery/opinion-clery-act-wastes-college-and-university-resources/
• A Boon to Small Businesses, College Students’ Return to Boston Worries Some Residents https://www.bostonherald.com/2020/08/29/a-boon-to-small-businesses-college-students-return-to-boston-worries-some-residents/
• College Trustees Must Step Forward in the Era of Pandemics https://medium.com/@jtgraff/college-trustees-must-step-forward-in-the-era-of-pandemics-eab691e91b9c

HRW's John Graff sits down with fellow higher education attorneys Courtney Bullard (Institutional Compliance Solutions) and Scott Schneider (Husch Blackwell) for a dynamic discussion about the pending Title IX regulations. 

HRW's John Graff chats with Peter Moser, his colleague at HRW who specializes in employment law. They cover the impact of coronavirus on crisis management and employment law.

Video podcast available at:  https://www.youtube.com/watch?v=-k1UbTRQlIk

HRW attorney John Graff details the timeline of the spread of the coronavirus. What steps should colleges take to protect students? What can students expect next? John explains what sets this illness apart from others and separates the facts from the fear.

References:

The Chronicle of Higher Education (subscribers only):

• American Colleges Seek to Develop Coronavirus Response, Abroad and at Home
• Coronavirus Is Prompting Alarm on American Campuses. Anti-Asian Discrimination Could Do More Harm.

"American Hookup" author Lisa Wade joins John to talk about the new world order when it comes to hookup culture on college campuses.

John is joined by Scott Schneider, partner at the law firm of Husch Blackwell, and Joe Storch, Associate Counsel in the SUNY Office of General Counsel and Chair of the Student Affairs Practice Group. The three of them discuss: Title IX, Clery Act, Department of Education enforcement, student affairs challenges, and more! 

Robb Jones, Senior Vice President at United Educators and a titan in the higher education industry, joins the show for a discussion about how institutions can implement effective risk management, the founding of United Educators, and more. 

John talks with former AUSA Christopher Tauro about the ongoing college-admissions scandal and the criminal implications. Chris is the managing partner of the Boston and Hartford offices of Lewis Brisbois (https://lewisbrisbois.com/). Please share and subscribe - People, keep on learning!