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The title for this Legal Guide is "Sexual Misconduct in California Higher Education Institutes, What to Know and Who to Report to." I chose this topic because I believe it is important for all staff members on campus to be prepared when these events arise. Students who are trusting a staff member enough to report to about a sexual misconduct incident should be aware of that student’s rights and how to move forward. As for my professional perspective, I believe that all staff should be aware and trained on how to handle sexual misconduct issues with their students so the process is organized and handled professionally. Additionally, it is essential for each staff member to be aware of who their Title IX coordinator is and information on reporting to them. The audience for this legal padlet is aimed for staff on a higher education campus that is federally funded in California and how to help students in this situation.

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The interview allowed me to gain a different viewpoint on the importance of understanding Title IX and campus safety for students. Students who are reporting are more than likely scared to report and confused on who to report to. For this reason, it is vital that all staff are prepared on what to say if students report to them and where to go with that information. Three best practices that staff can utilize are:

Knowing who your Title IX Coordinator is on campus and where their office is located.

Have a plan on what to say to students who report and how to move forward to help them

Be aware of laws and polices for sexual misconduct on your campus to ensure that all rights are provided to the students and communication is only going towards those that need to be involved in this private matter.

An emerging issue in this topic is reports coming in that are false and how to handle each report. If institutes are inspecting every incident that comes in and are instantly accusing the suspect of the crime, false accusations may occur. On the other hand, there are new ways on the horizon that can change how education approaches false accusations.This may lead to campuses not being obligated to fully look into each case that comes in.

Mr. Bishop, Title IX Coordinator
California State University

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Citation:
Cantalupo, N.C. (2015). Five things student affairs professionals should know about campus gender-based violence. NASPA–Student Affairs Administrators in Higher Education. Retrieved from https://www.naspa.org/images/uploads/main/5Things_Gender_Based_Violence.pdf

Link: https://www.naspa.org/images/uploads/main/5Things_Gender_Based_Violence.pdf

Summary: This resource aligns well with this Legal Guide as it provides terms and information on understanding gender-based violence in higher education and how to properly address it. Additionally, this resource goes into detail on Title IX and the rights and policies it administers for each student.

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Citation:
New, J. (2016). Blaming the victim. Inside Higher Ed. Retrieved from https://www.insidehighered.com/news/2016/06/17/colleges-sued-students-negligence-turn-victim-blaming-defense

Link: https://www.insidehighered.com/news/2016/06/17/colleges-sued-students-negligence-turn-victim-blaming-defense

This article portrays the issues with our student safety off campus and more specifically in a study abroad program. If the university is requiring students to live in a specific location in a foreign atmosphere, the university should go in depth on making sure their duty is completed in creating the most safe experience for the students that they can. Even though this happened off campus, the student is still protected under Title IX.

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Worcester Polytechnic Institute continues to face criticism after lawyers representing the university alleged that a student who was sexually assaulted during a study abroad program in Puerto Rico is partly responsible for her rape. The argument was made in response to a lawsuit filed by the victim against the university.

Experts on rape and advocates for those who have been attacked say that it is unethical and shameful to focus on the decisions of rape victims rather than on the actions of rapists. While advocates warn colleges against making such arguments when accused of negligence by assault victims, legal experts said it's standard for lawyers representing the institutions to take a "hard line that would be inappropriate outside of litigation."

In a letter to students last week, WPI attempted to distance itself from the lawyers' argument, noting that it had not "vetted or approved" the approach and that the lawyers work for an insurance company no longer employed by the university.

"You may have seen headlines that imply WPI is blaming the victim for this rape, an idea in direct conflict with our values and our response to this situation," Laurie Leshin, Worcester Polytechnic Institute's president, stated. "You know this, but it bears repeating: WPI is committed to the health and well-being of our students, whether they are on or off campus. Sexual assault is a national crisis facing every college and university in the nation. It's an issue that we take very seriously."

The victim in the case is suing WPI for failing to ensure or require proper background checks for security guards who worked at an apartment building leased by the university in San Juan, where the former student was required to live while studying abroad in 2012. The university contracted with a local company to use the apartments, though security guards were not part of the contract.

The former student said she drank a watermelon beverage containing three or four shots of liquor at a hotel bar one night. Later, she returned to her apartment building and went to the roof with a security guard who worked there. The guard, William Rodriguez, then raped her.

A Puerto Rico court found him guilty of the crime and sentenced him to 20 years in prison. Rodriguez was once a state police officer but was suspended in 2011 after selling bullets to an undercover agent.

The former student filed a civil suit against WPI last year, arguing the university was negligent and party responsible for the rape. In response, lawyers working for the university's insurance firm at the time, AIG, said the student engaged in risky behavior, including excessive drinking and ignoring instructions and training that the university had provided.

In a deposition, according to The Boston Globe, the lawyers asked the student if her parents had taught her not to "take candy from strangers." The student said because her attacker was a security guard who worked at the building WPI required her to live in, she assumed it was safe to go to the roof with him.

"You felt it was OK to go to the roof, a dark secluded roof with a man you know nothing about, whose name you don't even know, and you felt that was not risky behavior," one lawyer asked. "Would you agree with me that if you had not gone to the roof with Mr. Rodriguez this incident wouldn't have occurred?"

Though the university says it did not approve of this line of questioning from the lawyers, documents obtained by the Globe show that university officials -- including WPI's assistant vice president and chief compliance officer -- were present during the deposition and did not object to the approach.

"While it is certainly victim blaming to assert that a victim's own alcohol use and partying contributed to a sexual assault, and administrators should never take such a position, it would simply be actionable malpractice for a lawyer not to assert contributory or comparative negligence as a defense," said Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management. "It may be distasteful to assert such a defense, but college administrators, even if aware, would typically have little to no say in how the case is defended."

Worcester Polytechnic Institute is not alone in using -- or allowing an attorney to use -- legal strategies that aim to cast rape victims at fault or in a negative light in order to win a lawsuit or have one dismissed.

Last year, a student sued the University of Oregon, arguing that it mishandled her allegations that she was sexually assaulted by three basketball players, including one who had been accused of assault at his previous college. In response, the university countersued the victim. "Plaintiff's attorneys filed a lawsuit with unfounded allegations in an attempt to damage [basketball coach Dana Altman's] reputation, curry favor and gain traction in the media, and coerce a public university to pay a hefty sum to plaintiff even though it has done nothing wrong," the filing stated.

A columnist for The Oregonian called the approach "legally sound" but "ethically bankrupt," and 2,300 people signed a petition demanding that the university drop the countersuit. The university eventually agreed and settled with the victim for $800,000.

In 2014, Virginia Wesleyan College responded to a lawsuit from a woman who said she was drugged and raped on campus by asking that she name any person she had ever had sex with and any men she dated since the assault. In her lawsuit, the woman said she was a virgin prior to the assault and that she has been too traumatized to have sex following the attack.

"Plaintiff has put her sexual history at issue by arguing she is unable to have sex, does not have any interest in sex and has experienced sexual difficulties in romantic relationships due to her inability to have sex and lack of interest in sex," the college's lawyer states in a filing. "Given the significance of these claims in a case where $10 million is at issue, VWC feels compelled to explore plaintiff's sexual history."

The filing also stresses that the university warned the student during freshman orientation about the dangers of attending parties and drinking alcohol. "VWC believes plaintiff exercised poor judgment in consuming any alcohol given her age," the lawyer wrote, arguing that the student was "contributorily negligent." Last month, a jury sided with the college.

Carleton University in Ottawa made a similar argument during a lawsuit in 2009, saying that a student raped in a chemistry lab should have locked the door while she was working.

Colby Bruno, senior legal counsel for the Victim Rights Law Center, said that while arguing that a plaintiff is partly responsible for her situation is a common legal tactic in negligence lawsuits, it is one that should not be used in cases involving rape victims -- particularly by lawyers representing colleges and universities that claim victim blaming is in direct conflict with their values. And not being directly involved in creating the defense, she said, is no excuse.

"If you want to communicate an atmosphere of respect and understanding, you need to also make sure that your general or outside counsel is not arguing that a victim is to blame," Bruno said. "It is not an obligatory defense. You can make an argument without it. You need to consider not just what the implication for that victim is, but also what the broader implication is that you're communicating. Claiming that an individual person, man or woman, is somehow responsible for their own rape is shameful."

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Colleges sued by students for negligence turn to 'victim blaming' in defense

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Worcester Polytechnic Institute continues to face criticism after lawyers representing the university alleged that a student who was sexually assaulted during a study abroad program in Puerto Rico is partly responsible for her rape. The argument was made in response to a lawsuit filed by the victim against the university.

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Citation:
Camera, L. (2019). Lawmakers examine higher ed’s response to sexual assault. U.S. News & World Report L.P. Retrieved from https://www.usnews.com/news/education-news/articles/2019-04-02/lawmakers-debate-betsy-devos-proposed-rules-on-campus-sexual-assault

Link: https://www.usnews.com/news/education-news/articles/2019-04-02/lawmakers-debate-betsy-devos-proposed-rules-on-campus-sexual-assault

Summary: This article goes in depth on a debate between how different parties look at sexual assault on campus and reporting aspects. One side of the debate agrees with the theme of requiring the institute to investigate promptly on all sexual assault reports on and off campus. Newer ideas of reporting issues are brought up as many reports are falsely reported and misunderstandings come to surface when appointing the accuser. This heavily relates to the topic of this Legal Guide as it speaks on how to properly move forward after a student has reported to staff on campus.

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Lawmakers Examine Higher Ed's Response to Sexual Assault

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Efforts to reauthorize the Higher Education Act could derail the education secretary's attempts to finalize rules regarding Title IX and campus sexual assault.

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Citation:
California Legislature. (2014). Student safety: Sexual assault. California Legislative Information. Retrieved from https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

Source of Law: State Administrative

Link: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

Summary: This is an Act to enhance the California Education Code that is related to sexual assault, domestic violence, dating violence, and stalking. This Act requires an affirmative consent from all parties of the incident and will be a standard on all higher education institutes in California that are being funded federally. The consent will be constructed under precise policies and protocols to determine what is appropriate to be deemed as actual consent in these cases.

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67386.

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. "Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused's belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:

(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.

(2) Initial response by the institution's personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.

(5) Contacting and interviewing the accused.

(6) Seeking the identification and location of witnesses.

(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.

(8) Participation of victim advocates and other supporting people.

(9) Investigating allegations that alcohol or drugs were involved in the incident.

(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.

(11) The role of the institutional staff supervision.

(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

(13) Procedures for confidential reporting by victims and third parties.

(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.

(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution's overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.

(e) Outreach programming shall be included as part of every incoming student's orientation.

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67386. (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C.

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#7 The Sex Equity in Education Act in the California Education Code

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#7 The Sex Equity in Education Act in the California Education Code

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Citation:
Equal Right Advocates. (n.d.). Sexual harassment at school. Equal Rights Advocates. Retrieved from https://www.equalrights.org/legal-help/know-your-rights/sexual-harassment-at-school/

Source of Law: State Statutory

Link: https://www.equalrights.org/legal-help/know-your-rights/sexual-harassment-at-school/

Summary: This Act prohibits sexual harassment in any California institution as long as it is funded by the State. This also includes athletic, academic, extracurricular, research or financial aid programs. The Act requires institutions and programs to provide all students, faculty, and parents documentation on their sexual harassment policy. This helps each population understand and find the procedures of how to report.

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Citation:
Justice.gov. (n.d.). Intersection of the title ix and the clery act. Justice.gov. Retrieved from  https://www.justice.gov/archives/ovw/page/file/910306/download

Source of Law: Federal Statutory

Link: https://www.justice.gov/archives/ovw/page/file/910306/download

Summary: This requires colleges and universities in the United States to send in an annual report of crimes on campus including sexual misconduct. Reporting's of sexual misconduct can be given to the campus Title IX coordinator to handle the information for the annual report. The institution is to also give warnings out to those on campus that may be in danger.

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Citation:
U.S. Department of Justice. The title ix of the education amendments of 1972. U.S. Department of Justice. Retrieved from https://www.justice.gov/crt/fcs/TitleIX-SexDiscrimination

Source of Law: Federal Statutory

Link: https://www.justice.gov/crt/fcs/TitleIX-SexDiscrimination

Summary: Title IX of the Educational Amendments of 1972 is a federal law that protects students under sexual assault and harassment. This Title requires protection for all students at institutions that are funded federally. Title IX also covers athletic programs and most importantly, protects sexual harassment and assault on or off campus.

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Title IX Of The Education Amendments Of 1972, 20 U.S.C. A§ 1681 Et. Seq.

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On June 23, 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law. Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.

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Student Sexual Misconduct Policy

Link: https://www.csus.edu/umanual/student/stu-0120.html

This is a local policy for Sacramento State University to abide by for student sexual misconduct.  This prohibits discrimination, harassment, sexual misconduct, dating and domestic violence and stalking in CSU Executive Order 1097.

Citation:
California State University, Sacramento. (2016). Student sexual misconduct policy. California State University, Sacramento. Retrieved from https://www.csus.edu/umanual/student/stu-0120.html

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Policy Administrator: Vice President for Student Affairs Authority: CSU Executive Order 1097 Effective Date: Updated: October 5, 2016 Index Cross-References: Policy File Number: STU-0120

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CAS  Statement of Shared Ethical Principles: Principle VI - Veracity
This is a pledge, in higher education ethical standards, to relay all information truthfully and accurately. In this principle, it also states that employees are to communicate relevant and important facts but still respecting privacy and confidentiality, including sexual misconduct reporting.

Link: https://www.cas.edu/files/CASethicsstatement.pdf

Citation:
CAS. (n.d.). CAS Statement of shared ethical principles. The Council for the Advancement of Standards in Higher Education. Retrieved from https://www.cas.edu/files/CASethicsstatement.pdf

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Citation:
National Center on Safe Supportive Learning Environments. (n.d.). Safe place to learn. American Institutes for Research. Retrieved from https://safesupportivelearning.ed.gov/safe-place-to-learn-k12

Link: https://safesupportivelearning.ed.gov/safe-place-to-learn-k12

This is a resource for campus staff to become aware of school safety techniques that eliminate student sexual assault and harassment. It is a bundle that provides resources for response planning, trauma sensitivity training, action steps, and many other tools to help create a safe campus for students.

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The Safe Place to Learn resource package provides a range of materials to support school efforts to prevent and eliminate peer-to-peer sexual harassment and sexual violence. It is designed to help establish and maintain a safe, supportive learning environment and mitigate factors that interfere with learning. This resource package supports school district and school staff efforts to:

comply with Title IX sex discrimination prohibitions and

create a positive school climate.

Safe Place to Learn is one set of materials among a diverse collection of tools commissioned by the White House Task Force to Protect Students from Sexual Assault. This resource includes: guidance for administrators; e-learning modules for all school staff; a coordinated response team planning guide and training module; a trauma sensitivity training module; and action steps, discussion guides, bystander supports, and other resources.

Contents of the Resource Package

All district staff, including teachers, classified staff, and support personnel

The guide summarizes the intent of the resource package, lays out the recommended use of the materials, and provides a glossary for understanding the terms used to discuss issues and actions.

Administrators

The guide contains information for working with your Title IX coordinator and using the three instruments to support positive change-- Title IX compliance, positive school climate, and trauma sensitivity. The guide also emphasizes the need to make sure everyone is familiar with all school policies and procedures relevant to the topics covered in this resource and know where to find them.

All building staff, including teachers

Three brief e-learning units with checklists and handouts (1) explain the school's obligations with regard to sexual harassment; authority of the designated Title IX coordinator; range of unwelcome sexual conduct up to and including bullying and sexual harassment and violence; incidence and impact on students; and strategies for addressing all forms of harassment, not just those staff might consider severe; (2) describe major components needed to plan, implement, and evaluate efforts to build a positive school climate; and (3) provide strategies for all staff to use to promote healthy relationships, teach bystander intervention, and handle allegations of sexual harassment.

Coordinated Response Team Planning Guide (PDF)

Staff responsible for intercessions
with and response to students, including teachers

The quick guide supports staff planning a coordinated response to bullying, sexual harassment and violence, including taking a team approach, developing a coordinated response to sexual harassment and allegations, and learning about trauma sensitivity.

Training Module 4: Trauma Sensitivity at School (video file)

Staff responsible for intercessions
with and response to students, including teachers

The e-learning unit describes the impact and incidence of trauma among youth, effects on brain development, and strategies for management.

Handouts and Worksheets (PDF)

Handouts address specific issues encountered by students and staff. Worksheets guide staff examining the school environment and developing self-care habits.

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Safe Place to Learn: Prevent, Intercede, Respond to Sexual Harassment of K-12 Students

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The Safe Place to Learn resource package provides a range of materials to support school efforts to prevent and eliminate peer-to-peer sexual harassment and sexual violence. It is designed to help establish and maintain a safe, supportive learning environment and mitigate factors that interfere with learning.

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#13 Bulleted list of Recommendations / Best Practices for Compliance

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#13 Bulleted list of Recommendations / Best Practices for Compliance

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Understand Title IX and the student’s rights in higher education.

Be aware of how to create a safe space for students to feel comfortable enough to report.

Communicate with the Title IX coordinator on your campus.

Make sure students who report do not feel like a victim.

Go to trainings or hearings on sexual misconduct on campus to be aware of the most up to date policies and procedures.

Be prepared to know what to say and how to handle a situation when a student reports an incident.

Make others around you become aware of California sexual misconduct laws and who the Title IX coordinator is on your campus.