2014 Legal Issues in
Higher Education
October 14, 2014
8b - Have Risk, Will Travel –
Part II: Managing Student Affairs
Issues and Compliance Abroad
Presented by: Seth F. Gilbertson, Associate Counsel, SUNY Office of
General Counsel
Acknowledgements: Joe Storch; Stacy Tsantir
On the Docket
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Clery reporting and international programs
Title IX issues with international programs
Conduct issues in international programs
International program leadership
Emergency management
Health and medical issues
Drafting and applying policies for study
abroad
Clery on Tour
• Just as with stateside reporting, Clery does not
require you to report crimes based on WHO
• Clery requires you to report crimes based on
WHERE
Example:
Two strangers are robbed by a third stranger
while walking across the campus quad (they were
not invited and had no business being there).
Report
Reportable Places
On-Campus:
– All campuses of the institution.
– At a Separate Campus, defined as a geographic location
staffed by administrative personnel and where a student
can take an organized program of study. An “organized
program of study” means an entire educational program
from which a student can attain a degree, diploma, or
certificate. It does not include locations where a student
can simply take some courses.
• At any location designated as On Campus property, the
institution will also collect and include crimes occurring in
Public Property adjacent to and accessible from the On
Campus property.
Reportable Places
Clery Act crimes are reportable as non campus
incidents if they occur:
• In space that the institution owns or controls (control
requiring only a formal agreement for use, such as a
lease or rental agreement) overseas that are used to
support the institution’s mission and are frequently used
by students (i.e. not just administrative offices);
– The same hotel/hostel is used on a regular basis (multi
year or semester); or
– It is a "trip of longer duration"
• Define by policy (20 days or more)
Reportable Places: Hotels
• Crimes that occur in that controlled or frequently used
hotel/hostel are reportable as non campus crimes:
– Student’s rooms;
– Entrance and egress, lobby, elevator, escalator,
stairwell
– Public areas (breakfast, pool, gym)
• Not reportable:
– Crimes that occur in non student private rooms
– Crimes that occur on floors not inhabited by students
– Crimes that occur in places not accessible to students
(VIP lounge)
Non-Campus Overseas
Important Non-Campus Distinction:
• No public property reporting for Non-Campus
Property.
• Only count crimes that occur on the dates and
times that your institution owns or controls
the location (this is very important).
Not Reportable
• Crimes that occur on student-organized or
private trips.
• Crimes that occur on college-sponsored field
trips.
• Crimes that occur on overnight stays or short
stays (assumes no long-term relationship with
vendor).
• Crimes that occur in adjacent property
Not Reportable
Staying with a Host Family:
From the Handbook Page 30:
Host family situations do not normally qualify
as noncampus locations unless your written
agreement with the family gives your school
some significant control over space in the
family home.
Clery on Tour
Statistics that count Clery reportable crimes and certain referrals.
• Crimes
– Federal (UCR/NIBRS) definitions
– Hierarchy rule applies (with exceptions)
• Referrals for drugs/weapons/alcohol
– Local jurisdiction definitions
– Has to be a crime (not just a violation of institutional policy)
• 19 year old alcohol violation in London
• Marijuana violation in Amsterdam
• Possession of a handgun in a country that allows handguns
• Clery Act sets a floor, not a ceiling,
– you may report more crimes or incidents than those required – per
new Handbook, these must be reported separately.
Clery on Tour
We learn of Clery reportable crimes in two ways:
• Campus Security Authorities
– Faculty/staff with significant responsibility for students and
campus activities (includes pretty much anyone traveling with
students overseas)
– Individuals specified as those to whom students and
employees should report crimes
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Statistics provided by local law enforcement
– Send requests for crime statistics to local law enforcement
• Specify what constitutes public and campus property (if applicable) for
Clery Act reporting purposes
• State that the information is required by the Clery Act for disclosure in
the ASR and to the DoE.
• Keep a copy of the request for required Clery Act statistics
• Document any response or non-response from local law enforcement
• Good faith means not waiting until the last minute.
Additional Considerations
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Missing Persons
Sex-Crime Information
Records Retention
Timely Warnings and
Notifications
Example
Student is robbed at an Occupy protest
outside of Harrods while on spring break in
London, sees the college president, punches
her, then lights a fire with old issues of the
News of the World.
NOT Clery reportable
Example
Student is robbed in the elevator of a hotel
that the college rents a floor from for a week
each semester.
IS Clery reportable
TIX & ISSS
"OCR recommends that a school take steps to
ensure that its employees who work with
international students, including the school’s
DSO, are trained on the school’s sexual violence
policies and that employees involved in handling
sexual violence complaints and counseling
students who have experienced sexual violence
are aware of the special issues that international
students may encounter."
TIX Abroad
• Title IX Coordinators should consider all
incidents and allegations, including those
that occur overseas, consistent with their
responsibilities to spot patterns and track
complaints
• Students participating in study abroad
through a Host or Provider are subject to the
policies and procedures of the Provider or
Host, as well as those of his or her Home
Institution.
TIX Abroad
• Which institution takes the lead in investigating and
responding to allegations of sexual harassment
and/or violence shall be determined immediately
following the reporting of an incident. Factors to
consider include:
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the location of the incident;
the enrollment status of the student(s) involved;
the nature and duration of the program;
the timing of the report (during or after a program).
• Generally, the institution with immediate and
primary control over the parties and evidence shall
lead the investigation and response.
Example
Student from your college who is in summer
program at University of Florence alleges sexual
assault by a student from college in neighboring
state who is in the same program. She calls the
faculty member at U Florence who coordinates
the program with your College to report the
incident.
• What happens next?
• Who is involved?
• What options are available for victim?
TIX Abroad
• Planning and speed are key
– Sadly, this will happen to you
• Be ready to offer:
• Counseling
• Options
• Legal assistance
• Be ready to perform an investigation
• Be ready to conduct a hearing
– Have distance-capability and educated staff on site
• Prepare and educate partners
– Reach out to US counterparts immediately
The Code of Conduct Goes Global
What parts of your code apply?
• TIX yes
• What does the provision/prohibition say?
– Is it limited to on campus or applied anywhere?
• Add local law
• Does campus' law travel?
– Drinking age?
– Marijuana?
• Specific cultural or safety considerations?
– Look at specific trip and history
An American Code in Paris
Conduct:
• Notice of charges
– Time to prepare
– Doesn't limit interim safety precautions
• Opportunity to be heard
– Usually a hearing (look at code)
– Consider distance options
• Add provisions to compliment process
• Expulsion is student's expense
An American Code in Paris
Conduct (cont.):
• Appeal
– Good idea to have opportunity to correct deficiencies
Academic:
• Retain full discretion
– Usually some appeal or review process
Trip Leader Training is Essential
– Give authority to act
Forum Standards
• Standard 8: The Organization
has established and
continuously maintains
effective health, safety,
security and risk
management policies,
procedures and faculty / staff
training.
–The Forum on Education Abroad 2011
http://www.forumea.org/standards-standards.cfm
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Program Leader Qualifications
• Proposal Process
• Orientation/Training
• Student/Staff Ratios
– Never one lone leader!
Essential Functions
• Attendance at mandatory pre-departure meetings;
• 24-7 availability for the term of the program (the details of this
differ by program but student emergencies rarely happen
during the business days);
• Ability to manage the teaching requirements for the course in
addition to the student service requirements;
• Maintain contact with the education abroad office/sponsor
unit throughout the program;
• Report all behavior and health/safety incidents to the
education abroad office/sponsor unit and consult on required
response;
• Participate fully in all aspects of the program.
Program Leader Training
• Why?
– Student Risk
– Institutional Liability
– Leader Risk
• Institutional/Leader
– Contractual, tort and federal statutory liability
– Institutional indemnity/insurance for those that
follow process/policy and consult widely
– Foreign laws
Case: Sexual Harassment
King v. Bd of Control of E. Michigan Univ
• Female students alleged sexual harassment by two
male students and a program assistant.
• The faculty leader chastised the students after the
issue was reported to the home campus.
• The institution was found in violation of Title IX due
to lack of appropriate response & fined.
Leader Training (cont.)
• It is a constant process!
– Consider multiple workshops/meetings
– Draw on past leader experiences
– Build a cohort
– Training vs. professional development
• Mandatory? If yes, how enforced?
• Private Companions?
– Allowed?
– What training/credentials?
Leader Training (cont.)
• University policies
– Privacy (FERPA, HIPAA)
– Sexual harassment (Title IX, Campus SaVE, Clery)
– Health, disabilities (ADA)
– Staff and faculty code/job description
– Education abroad
– Academic
– Student behavior code
– Driving/transportation
Leader Training (cont.)
• Today’s student and
responding to common
issues
– Mental health
– Drinking
• Division of duties
– Program leader
– Local support
– Home university
• Emergency response
plan
– Communication
– Meeting place
– Location specific
• Incident response
– Reporting and 24-7
contacts
– Using insurance
– Scare stories/case
studies
March 11, 2011
A megathrust earthquake, one of the five largest
ever recorded, occurs off the Oshika Peninsula in
Japan. It was followed by a tsunami with waves
of up to 10 m (33 ft). Thousands are dead and
there is extensive material damage to buildings
and infrastructure, leading to significant
accidents at four major nuclear power stations,
including one at Fukushima in Tohoku. 2,654
people are missing.
Woodwho, woodwhere?
• On part of its Asian tour, your university's
woodwind ensemble arrived in nearby
Miyagi two days before.
• Ms. Phrantic calls and asks if her little
Jimmy is alright.
• How do you answer?
Emergency Planning
• Have an Emergency Team at home
• Includes: Counsel, Risk, International, Student Services,
External Relations, Public Safety, Health Services, etc.
• Has authority to take action
• 24/7 availability
• Consider State Department warnings
• In-country contacts?
– Partners, friends, authorities
• Including local authorities, insurance carriers, and
consulate/embassy
• Make sure that these are available to someone at home
Emergency Planning
• Require an Emergency Plan
– Lists country-specific risks and steps taken to
mitigate or planned as response
– Defines emergency and/or levels
• Includes student conduct and criminal activity
• Includes sexual assault response plan
– Automatic emergency contacts
– Consider loss of leaders
– Repatriation plan
In the Middle of the Night
It's the 8th day of a three week study trip in Thailand
and Sally gets a fever. The group is led by Professor
Wrisk and includes 14 other students. Wrisk calls
campus to seek advice, but gets no response
because it's in the middle of the night EST. The local
clinic seems clean and safe, so Wrisk and the group
go on to the next stop and leave Sally. Sally speaks
no Thai.
• Not having heard from Sally in two days, her mom
calls.
• What information does your college have for her?
• When Prof. Wrisk finally contacts the campus, who
does what?
Health Risk Planning
• Require student orientation
• Require leader orientation
• Require waivers and agreements
– General and activity specific
– Gives decision-making authority to leaders
• Consider health forms
– Doc approval?
• Require immunizations
– Country specific
• Insurance
– Health and repatriation
Health Planning (ADA)
• Just assume ADA applies in all of your programs, at
home and abroad
– More complicated with foreign partner programs
– Consider addressing in agreements
• Prepare to provide disability accommodations
– Think creatively about alternatives
– Use resources from home where possible
– This will not be low-cost
• Seek information AFTER admission to program but
BEFORE trip leaves
• Make sure students and their providers understand the
complications and difficulties of international travel
Policy Basics
• Focus on addressing four main sources of risk
– Disaster preparedness
– Health Issues
– Compliance
– Business
Policy Basics
• Use students and/or funding as the hook
– Hard to argue institution's role in managing these
– Some controls already in place
• Access to funds
• Registration
– Consider how to tie in research and experiential
travel
• Indemnity?
• Make all travel contingent on PLANNING
Policy Basics
• Designate a responsible office
– International Programs offices have the expertise but
often lack the initiative for faculty-led programs
• Give them an ownership interest?
– Consider adding a position
• Offer support to trip leaders
– Not just requirements, but help
– Will have more juice if backed by policy
• Consider retaining experts
– Business and compliance needs are different
everywhere
General Preparation/Planning
By policy make approval contingent on:
– Stated goals
• Related to institutional mission?
• Consider student readiness
– Resources
– Travel/Accommodations
• Clear itinerary and contacts
– Adequate number/Expertise of leaders
General Preparation/Planning
By policy, make approval contingent on:
– Orientation/Training
• Much more to come
– Communications
• What devices and who to contact
– Emergency Plan
• More to come
– Insurance
Policies you need
• No money spent overseas without approval
– Centralize all international outflows
• Tie planning/approval to reimbursement
• Have procurements and contract authority sit
outside of academic or research area
– Require justification
– Require legal review
Bonus Risk To Address In Policy: Travel
• Road crashes are the leading cause of death
and injury for healthy Americans traveling
abroad
• Policy should require preparation for road
safety situations in any country or regions
where university-sponsored groups will be
driving
• Allow employees to drive?
NEVER
Bonus Risk: Travel
Association for Safe
International Road
Travel (ASIRT)
publishes
in–depth Road Travel
Reports about the
world’s roads for over
160 countries
Bonus Risk: Travel
- Country-Specific Information
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Driver behaviors
Signage
Laws and customs
Public transportation
Taxis and buses
Night travel
Holiday travel
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Pedestrian safety
Weather hazards
Extreme terrains
Dangerous roads
Police enforcement
Emergency care
Post-crash procedures
Discuss?