Campus Counsel | Monthly Roundup Of Legal Issues In Higher Education: November 2014 Edition Summaries
OCR Agreement with Princeton University Reaffirms Need For Strong Policies and Procedures to Combat Sexual Violence and Assault.
In October 2014, Princeton University entered into an agreement with the U.S. Department of Education’s Office for Civil Rights (OCR) which resulted in a significant revamping of Princeton’s policies and procedures to address complaints of sexual violence and assault. The agreement followed an investigation in which OCR concluded that Princeton had violated Title IX. Specifically, OCR determined that Princeton did not have the appropriate policies and procedures in place to ensure that complaints of sexual violence, including sexual assault, were addressed in a prompt and equitable manner (which, in one case reviewed, resulted in a continued hostile environment for a student).
Prior to the OCR investigation, Princeton had several policies that addressed sexual violence/assault, but according to OCR none of the separate policies contained complete information to describe the process for handling sexual violence/assault claims against students. Moreover, among other shortcomings found by OCR, the prior sexual violence/assault policies utilized an incorrect evidentiary standard, did not provide clear and prompt timeframes for the major steps in the grievance process, including appeals, and did not expressly provide the complainant with the same opportunity as the accused to present witnesses and other evidence. In total, OCR found that Princeton’s prior policies were not easily understood by potential complainants and therefore may have discouraged students from moving forward with complaints in some circumstances.
Over the summer, Princeton revised its sexual violence/assault policy to address many of the areas that OCR found lacking in its prior policies. The university consolidated information from its prior policies into a single document, and the new policy confirmed several key points, including that Princeton would use a “preponderance of the evidence” standard in reviewing complaints of sexual violence/assault, that both parties have appeal rights in the process, and that investigations will proceed along a defined timeframe for the investigation and appeal process which can be extended only for good cause. OCR is continuing to review Princeton’s new policy, and under the agreement with OCR Princeton must also take several other steps, subject to OCR oversight, to implement its new policy, including education, outreach and data collection.
CLIENT TIP: OCR continues to monitor sexual violence/assault policies, and the implementation of those policies, closely. Colleges and universities should review their written policies regularly to ensure that the policies contain all pertinent information but remain easy to understand and should examine how those policies are implemented to ensure that complaints of sexual violence/assault are handled in a prompt and equitable manner.
Web Accessibility: Compliance Reviews, Enforcement Actions, and Private Litigation
The absence of an ADA Title III regulation for website accessibility does not protect your web-based content from claims of disability-based discrimination. The DOJ has maintained since 1996 that Title III applies to websites of covered entities that provide goods, services, programs or activities to the public. Section 504, written well before the use of technology in academic programs, also is applied to prohibit denial of equal access to programs or activities that are web-based.
The Web Content Accessibility Guidelines (WCAG) 2.0 AA standard developed by the private international World Wide Web Consortium (W3C) for increased accessibility for individuals with a wide range of disabilities are cited in two recent ADA settlements. On November 17, 2014, following a DOJ compliance review, Peapod (the web-based grocery ordering and delivery services) agreed to make its website and mobile applications conform to the WCAG 2.0 AA standard. Peapod also agreed to require that its 3d-party vendors provide content in conformance with the WCAG standard. In March 2014, H&R Block, by a Consent Decree with DOJ and the National Federation of the Blind (NFB) made to resolve complaints of violations of the ADA, also agreed to make its website and mobile applications conform to the WCAG 2.0 AA standard and take other steps to improve accessibility.
In October 2014, NFB resolved litigation with Maricopa Community College District and Mesa Community College by an agreement to require use of accessible technology for the colleges’ public and library websites, its learning management system, campus ATMs and other. In March 2013, South Carolina Technical College System, by a Resolution Agreement following a compliance review by OCR, agreed to make the content on the websites of its 16 member colleges accessible to students with visual and print-related disabilities so that the students may access information on the websites “with substantially equivalent ease of use” or to provide information in “an equally effective and equally integrated manner.” These standards, introduced in a 2011 Dear Colleague Letter but not found in the ADA, have surfaced in the proposed TEACH Act that we reported on in the October Campus Counsel.
CLIENT TIP: Recognize that web accessibility is being scrutinized by DOJ, OCR, and private advocates and that differing standards of review are developing. As a baseline, consider evaluating your web-based content and program delivery for consistency with the WCAG 2.0 standards. Add a provision in third-party contracts where a vendor is developing, providing, or hosting content or services for students to require that content is provided in a format that conforms to WCAG 2.0.
University & Affiliates Pay $9M for False Claims Act Violations Filed Against Trustees and Others
In late October, Columbia University and an affiliated public health agency, International Center for AIDS Care and Treatment Programs (ICAP), paid $9 million to settle a civil fraud suit under the U.S. False Claims Act. The suit included as defendants the Trustees of Columbia University. The settlement arose out of a whistleblower case first filed under the False Claims Act by the former Director of Finance for Columbia’s affiliate, ICAP. The U.S. Attorney alleged that Columbia and others submitted false claims for payment in connection with AIDS- and HIV-treatment related federal grants. Specifically, the U.S. Attorney alleged that Columbia received millions of dollars in federal funding and grants, which required the defendants to “use a suitable means of verifying that the employees had actually performed the work charged to a particular grant.” In settling, Columbia admitted and acknowledged that it failed to comply with these and other funding requirements. Columbia was aware that these conditions were not met, alleged the U.S. Attorney, but it “continued wrongly to charge many federal grants for work that was not devoted to the projects they funded.”
Practice Tip: This settlement highlights the need for risk management protocols regarding funding and grant conditions and requirements in all areas of an institution. Part of that protocol should be a clear means for employees to raise issues regarding compliance (i.e. whistleblower concerns) without reprisal – and before they become a qui tam action. It also highlights the risk exposure for Trustees for false claims and the implications for insurance coverage for trustees on False Claims Act (or qui tam) claims.
To read more about the Columbia situation and the insurance implications, please go to www.theinsuranceriskmanager.com.
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