By Bridget Thoenen
The recent events at Penn State are prompting institutions around the nation to review their policies designed to prevent and respond to sexual harassment and other inappropriate behavior. Schools should act now to ensure that their policies meet ethical and legal requirements and are consistent with the institution’s guiding principles and culture.
Many state governments are now considering new laws as a result of the Penn State scandal. Although your school may have been in compliance with existing requirements, it is critical to review whether changes are being planned by the state legislature, the state commission or department of higher education. Beyond the question of what specific reporting and disciplinary requirements may be imposed by state law, schools should also evaluate the extent to which they might face exposure under the common law to costly lawsuits by victims of inappropriate conduct on campus, even when state and local laws do not dictate specific reporting and disciplinary requirements.
Along with local and state guidelines, federal law also dictates how schools should handle improper behavior. For instance, Title IX prohibits sexual harassment and violence in education programs and activities. Title IX requires institutions receiving federal funds to adopt and publish notices and grievance procedures and to take immediate action to eliminate harassment, prevent its recurrence, and address its effects. Title IX’s requirements are constantly evolving, as illustrated by the Department of Education’s Dear Colleague Letter issued in April to clarify and expand Title IX requirements. Also, keep in mind that the federal Clery Act requires colleges to issue timely warnings about certain crimes, including crimes of a sexual nature, publish an annual campus security report, and disclose statistics about campus crime.
Schools should evaluate whether they want to impose requirements and penalties beyond those required by law in order to better protect their students, employees, and other individuals. As we have seen from the Penn State scandal, if an incident arises at your school that attracts media attention, it will be important to not only show that your school has the appropriate policies in place, but also that you effectively enforce these policies and act in an ethical manner when handling any incidents. A failure to establish and consistently implement the right compliance structure for identifying and addressing abusive actions that every institution hopes will never occur on its campus could wipe out years of goodwill, erode public trust, and result in financial hardship.
__
Bridget Thoenen is an associate attorney at Dunn & Davison, LLC, in the firm’s Kansas City office. Bridget advises post-secondary institutions and other employers regarding a wide range of legal compliance issues. She also regularly assists institutions and employers with the development and implementation of employee and student handbooks and policies.