Venable Attorneys Share Key Takeaways Following 2019 National Association of College and University Attorneys (NACUA) Annual Conference

4 min

Restorative Justice: An Alternative to the Formal Complaint Process?

Now that the Department of Education's 2018 Notice of Proposed Rulemaking on Title IX permits informal resolution for sexual assault cases, restorative justice may be the new path forward in responding to sexual assault allegations on college campuses. The Department of Education recognized that "it is important to take into account the needs of the parties involved in each case, some of whom may prefer not to go through a formal complaint process." Restorative justice may offer the right alternative – it focuses on identifying the needs of the person who was harmed and determining how the person who caused the harm can repair it and take responsibility. Unlike mediation, restorative justice requires the person who caused the harm to acknowledge wrongdoing and to make it right. Advocates of restorative justice believe that this approach to handling sexual misconduct allegations on college campuses will likely increase the number of students who make reports; many students fail to follow through with formal complaints because they do not want to participate in adversarial proceedings with a classmate. Critics warn, however, that schools must ensure that students do not feel pressured to forgo a formal adjudication process.

Equal Pay Gains Momentum

Pay equity will continue to be a hot topic throughout 2019 and 2020. As the U.S. Women's National Team celebrated its historic World Cup victory on the field in France, chants of "Equal Pay" rained down from the fans in the stadium. Those of us watching as fans who advise educational institutions on pay parity understand that this issue is not as simple as the soccer fans in Lyon might hope. Even the most well-intentioned universities and colleges struggle to effectively evaluate whether their pay practices run afoul of federal and, increasingly, new state laws designed to shrink the historically stubborn gender and racial pay gaps. As the Employment Law Update panelists in Denver noted, new EEO reporting requirements will force most educational institutions to file compensation data categorized by gender, race, and ethnicity with the federal government in September 2019 (unless pending appellate litigation alters that timeline). These data points undoubtedly will become fodder for equal pay lawsuits. As the Women's World Cup made clear, there is a groundswell of support among the general public on this issue, which will be magnified by the presidential campaign cycle in the coming year. Educational institutions committed to taking specific steps to periodically evaluate pay gap risks will be better positioned to navigate these increasingly difficult waters.

Sexual Misconduct Allegations: Candor with the Community

Attorneys from general counsel offices for religious institutions came together to discuss investigating allegations of sexual misconduct in their unique educational environments. Working primarily from hypotheticals, panelists offered their perspective and advice on how to handle claims of misconduct while simultaneously respecting a school's association with ministries and synods. One recurring theme, which is a dominant issue in any institution regardless of religious affiliation, was when and how to communicate with the community regarding allegations of misconduct or abuse. The overwhelming consensus was that communication with the immediate community must be strategic and must not be premature, with the thought that discussing allegations too early might lead to uncontrollable furor and rumors, as well as reputational damage to the accuser and accused. On the other hand, communications with the community may assist with attaining corroboration of the accuser's accounts, which might ultimately strengthen a school's investigation. The key takeaway is that, from the public's perspective, schools should not be reticent about these issues, and can use publicity and outreach strategies to their advantage, gleaning information that may ultimately be helpful to any investigations.

Tackling the Rise in Anti-Diversity Complaints While Promoting Inclusion

As higher education institutions continue to create and develop programs aimed at achieving diversity and inclusiveness, they should be aware of the consequences that can result, many of which may be worth the risk. The Anti-Diversity Complaints regular session focused on current trends in filings with the Department of Education's Office of Civil Rights. While the discussion of diversity among student bodies is not new, this session also touched on the importance of diversity and inclusion programs for faculty and staff and how to combat the legal challenges brought by affirmative action challengers alleging discrimination. Many of these complaints object to scholarships benefitting women and minorities, women's science and engineering programs, and women's studies departments or networking groups. And many pass muster under Title VI and Title IX of the Civil Rights Act, among other laws. However, institutions do not – and should not – eliminate these programs altogether to avoid inviting these complaints. Instead, institutions should open up eligibility to programs and/or scholarships to all individuals, avoid using gender-specific pronouns, and recruit faculty and staff devoted to contributing to diversity at the institution. An unwavering commitment to diversity and inclusion missions will likely cause these complaints to continue to increase, but the desire to attract a variety of students, faculty, and staff should outweigh the fear of continuing these programs as institutions think about how to manage their risk.