By William E. Hannum III

What can we learn from this? How can we try to prevent the next tragedy?

We want to find ways to reduce the risk of future sexual assaults. We want to have better policies, better education – for potential victims, for potential perpetrators, and for the bystanders (whether peers or adults) who might intervene and prevent the next sexual assault.

What Happened In Concord?

By way of background, the prosecution argued that the defendant (as an 18 year old senior at the School) had emailed the victim (a 15 year old freshman), to invite her to join him for a “senior salute.” He wrote to her, “I want to invite you to come with me, to climb these hidden steps,” to a place “locked since before we were born” (the mechanical room on campus, where a sexual assault occurred).

This was allegedly part of an annual, unofficial School ritual, called the “Senior Salute,” in which senior males tried to “slay” females in lower grades, and in which the male students competed to be “No. 1 in sexual scoring.”

The Verdict

The jury found the defendant not guilty of three counts of aggravated felonious sexual assault, each of which carried a penalty of 10-20 years in prison.

The defendant was also acquitted of a simple assault charge (allegedly biting the girl’s chest).

However, the jury found that the defendant was guilty of three counts of misdemeanor sexual assault. These counts are premised in part on the fact that the victim was under the age of 16, and thus legally could not consent to the sexual encounter. Each count carries a prison term of up to one year, and sex offender registration for up to 10 years.

The jury also found the defendant guilty of endangering the welfare of a child, by soliciting the victim (under the age of 16) to engage in sexual penetration.

Finally, the jury found the defendant guilty of unlawfully using a computer to solicit a child, which is a Class B felony punishable by up to 7 years in prison and carrying lifetime sex offender registration. Thus, unless this conviction is overturned on appeal, this young man will be a registered sex offender for his lifetime.

Policies & Education:

• Yes Means Yes. Everything Else Means No.
• If You See Something, Say Something

What can independent schools do to reduce the risk of something like this occurring on their campus?

1.  Review & Improve Policies & Procedures. School administrators should carefully review and improve (if possible) policies and procedures related to issues of sexual assault, to make sure that the school follows best practices. Sometimes this will be tailored to the school’s culture, and sometimes it may be the culture itself that needs a second look. This policy audit should also include a thorough examination of all student sexual conduct policies (such as parietals), including policies that address consent, sexual assault and sexual harassment, bullying and hazing prevention and intervention plans, prohibitions against cyber-bullying and sexting, acceptable use of technology and discipline policies, and policies related to mandated reporting.

2.  Review & Evaluate School Traditions. School administrators should carefully review the school’s culture, traditions and other practices in light of the Concord case, and abolish or amend these traditions or practices to ensure that students are kept reasonably safe.

3.  Review & Improve Employment Policies. Schools should also conduct a careful review of employment policies, such as mandated reporter policies and training, the hiring procedures for all employees, as well as policies governing everything from the athletic department, to dormitory life, school trips, and any other circumstances in which students might foreseeably engage in unlawful or dangerous behavior.

4.  Enhanced Education For Students. In recent years, more independent schools are providing “Boundary Training” for students, to educate them about acceptable behavior. Such training should continue, but more robust boundary training is needed to educate students about the state laws governing consent and sexual assault, in addition to education about which behaviors are generally acceptable and unacceptable.  Multiple sessions in small groups, where students are given opportunities to engage with educators on this sensitive topic, are likely to provide a safe space for students to ask questions and absorb the information.  It is particularly important that the topic of consent be addressed, including the fact that it seems that the definition of consent is evolving, most recently to affirmative consent: Yes means yes. (And just to be clear: Everything else means no.)

This enhanced education for independent school students might well be viewed as a kind of precursor to the training that colleges and universities are in essence required to do. Institutions of higher education provide sexual assault prevention training for their students, pursuant Title IX. Clearly, independent school students could benefit from an age-appropriate version of such training, not only in their high school years, but also in preparing them for college.  Some people think that an age-appropriate version of this enhanced boundary training should start as soon as fourth grade.

5.  Enhanced Education For Faculty And Staff. Likewise, independent schools should continue and expand on the trend of providing “Boundary Training” for faculty and staff. More of this broad-based boundary training is needed, particularly to educate all school employees about each school’s potential liability when students engage in conduct on campus or sanctioned school events that violates state criminal laws. While many school employees seem reluctant to embrace the quasi police-like role inherent in such training, it seems too important to ignore in light of recent events in Concord.

In addition, this enhanced boundary training for school employees should also strongly reinforce the idea that if you see something, say something. We do not want more stories of coaches or janitors who did not get the training needed to know what to do when they saw an old man taking a shower alone with a young boy. Educate all employees. Empower all employees to do something.

Thus, for example, if you see an 18-year old senior going off into the dark, late at night, with a 15 year old freshman, say something, do something.

6.  Educate Parents And Board Members. Some version of boundary training should also be provided to parents and Board members, to make sure the entire school community understands what behavior is unacceptable. The potential for student sexual misconduct is not only a problem on boarding school campuses, and schools need to assist parents of day students in establishing appropriate guidelines when hosting social events in private homes or venues, off campus.  And to be sure that the students know that everyone knows the rules, and that it is safe to talk to anyone about unacceptable behavior.

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Let your school’s words and actions say clearly to everyone in the community that student safety is paramount, and that each member of the community is strongly encouraged to do his or her part to make it safe for everyone.

Yes means yes. Everything else means no.

If you see something, say something.

By Schwartz Hannum PC

Does your school’s application for admission ask potential students to provide a photograph? Are applicants required to indicate whether they are male or female? Do you promise not to discriminate against student applicants based on their genetic information? While all of these practices may be well-intended, some of them may miss the mark when it comes to avoiding discrimination and promoting diversity on campus.

Take the request for a photograph. The Internal Revenue Service (the “IRS”) notes that requiring a photograph may indicate that the admissions process is racially or ethnically discriminatory, even if that is not the school’s intent. Indeed, the IRS specifically requires private schools to include policies in their Bylaws and admissions materials, stating that the school does not discriminate based on race, color, or national or ethnic origin, as a condition of obtaining and maintaining § 501(c)(3) tax exempt status. Schools may, therefore, consider asking student candidates about their ethnicity as an optional question on an application, but should not insist on obtaining this information as a condition of admission.

Where does your state law stand on gender identity and expression? Some states prohibit this form of discrimination in public schools and many independent schools are choosing to take a fresh look at dress codes, restrooms and locker rooms with this characteristic in mind. Be sure that your school’s non-discrimination statement and application for admission are consistent with your school’s philosophy on this evolving topic. Do you need to know the gender of the applicant? You might consider increasing the number of check boxes on an application to permit a wider range of answers to the gender identity question, or include no check boxes, but ask a student applicant to self-identify in a way that best fits the applicant. Of course, in single-sex schools, this topic is significantly more complex.

Schools sometimes try to be inclusive with respect to genetic information. Under federal law, employers are generally prohibited from discriminating against employees based on genetic information; however, discrimination based on genetic information is not prohibited by independent schools toward student applicants and current students.  Though your school may not intend to evaluate students on this basis, schools are not legally required to include this characteristic as a protected class with respect to student applicants.

With schools focused on diversity and inclusion for the whole school community—based on financial need, disability, citizenship, the protected classes mentioned earlier and other characteristics—it is important to ensure that your non-discrimination statements and practices are consistent across the organization, are in sync with your school’s mission and are lawful. We recommend that independent schools review their non-discrimination policies wherever they appear—as illustrated in the list below—to ensure that they are drafted appropriately for both students and employees:

• Student/Parent Handbook(s);
• Employee/Faculty/Staff Handbook(s);
• Acceptable Use Agreements (Employees/Students);
• Bylaws;
• Employment Applications;
• Enrollment Contract; and
• Website

If you have any questions about legal compliance with respect to non-discrimination policies and diversity initiatives, please do not hesitate to contact a member of the Firm’s Education Practice Group.

By Sara Goldsmith Schwartz

Picture this: during an Upper School Assembly at Springtime Academy, a recent alumnus of the school gives a talk and video presentation about his recent adventure on Mount Kilimanjaro. He remains on campus for the day, attending classes and bonding with students. During a conversation after lunch, a couple of tenth graders reveal to the climber that some of their classmates recently engaged in sexual misconduct. The speaker tells the school administration about what he heard, but does not report the misconduct to the state child welfare authorities. Should he have?

Guess what the lawyers say? “It depends.” It depends on how your state law defines “mandated reporters,” or those who, by virtue of their profession, are considered to have a heightened responsibility to report good faith suspicion that a child has been abused, sexually abused or neglected. Typically, such reports must be made to state child welfare agencies within 24-48 hours of the individual learning of the suspected misconduct.

In most states, those employed by schools (administrators, coaches, teachers), doctors, social workers and other licensed counselors are considered to be mandated reporters; but by virtue of someone speaking at a school, the mantle of “mandated reporter” does not automatically apply. In other states, anyone—regardless of profession or school affiliation—is obligated to report suspected child abuse, sexual abuse and neglect. In those states, the speaker could have an obligation to report the misconduct—his telling school administrators what he heard may not be enough to satisfy that requirement. Some states require that school employees first report their good faith suspicions of child maltreatment directly to authorities before informing even their supervisor or head of school. Finally, most states penalize individuals who should have reported and do not, versus those who made a good faith report of child maltreatment, that later, turns out to be unsubstantiated.

The take away: the determination of who is legally obligated to report suspicions of child maltreatment is nuanced and highly dependent on knowing your school’s state law. Take the time to educate your entire employee population – boundary training and mandates reporter training will help the community be ready for whatever may arise on campus.

If you have any questions about legal compliance for reporting suspected child abuse, sexual abuse or neglect, please do not hesitate to contact a member of the Firm’s Education Practice Group.

By Sara Goldsmith Schwartz and Sarah H. Fay

Educational institutions, both secondary and higher ed, routinely survey peer institutions in order to ascertain the details of faculty and other employee compensation. In some cases, the data enables institutions to pay similar amounts as their peers; in others, the data enables institutions to pay more than market value. In both contexts, the purpose is to attract and retain excellent educators: a noble goal. However, before participating in (or relying upon data from) a compensation survey, educational institutions ought to consider the reality that some of these compensation survey methods may unwittingly violate antitrust laws.

Antitrust laws prohibit “anti-competitive” business practices – meaning joint conduct that unreasonably restrains competition. While not a per se violation, the exchange of information about compensation and benefits among employers is subject to antitrust scrutiny. Notably, compensation surveys that promote competition generally comply with antitrust laws.

At first blush, distinguishing the surveys that promote, rather than quash, competition may seem like a daunting task. The U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”), the agencies tasked with enforcing federal antitrust laws, have identified three criteria that, if present, will generally protect employers under the umbrella of an antitrust “safety zone.” These are: “(1) the survey is managed by a third party; (2) the information provided by survey participants is based on data more than three months old; and (3) there are at least five providers reporting data upon which each disseminated statistic is based, no individual provider’s data represents more than 25% of a weighted basis of that statistic, and any information disseminated is sufficiently aggregated such that it would not allow recipients to identify the prices paid by any particular provider.”

Of course, this is not a fool-proof method; a survey that meets this test may still violate antitrust laws. However, the DOJ and FTC have represented that, absent extraordinary circumstances, they will not challenge an employer that participates in a survey satisfying the safety zone criteria. Thus, the safety zone provides a useful framework to help schools navigate this complex area.

If an educational institution decides to conduct or utilize a survey sharing compensation information, the following tips may help minimize the risk of violating antitrust laws:

• Survey participants should not be identifiable, whether directly or indirectly.
• Prospective wages and benefits information should not be collected.
• Avoid including advice on how to use or interpret data. The more raw the data, the less likely it will be to raise antitrust concerns.
• Prohibit or avoid improper discussions about the survey. For instance, consider including a written disclaimer or an agreement that prohibits discussions that violate antitrust laws.
• In setting future compensation or benefits, the survey should be used as only one factor of many. This decision-making process should be carefully documented.
• Avoid conducting surveys too often, as the frequent collection of data could support an improper motive.

If you have any questions about best practices and legal compliance for conducting or participating in a compensation survey, please do not hesitate to contact a member of the Firm’s Education Practice Group.

by Sara Goldsmith Schwartz and Sarah H. Fay

Vaccines (and whether to vaccinate teachers and children) are hot topics of debate across the nation. The recent measles outbreak linked to Disneyland has intensified this discussion and caused a groundswell of anxiety on independent school campuses. We recommend that schools take this opportunity to implement a comprehensive Immunization And Communicable Disease policy to reflect a school’s desired practices and applicable governing laws regarding vaccination requirements and non-immunized students on campus. This will ensure that schools have the flexibility they need to respond to communicable illnesses, while also protecting the interests of students, parents, employees, and other community members.

Legal Requirements And Duties

As a preliminary matter, we advise schools to become familiar with applicable law and to determine whether their policies and practices are in compliance with legal mandates and best practices. Every state requires schoolchildren to be vaccinated against certain diseases unless they fall within an exemption based on medical reasons, religious beliefs, and/or personal or philosophical beliefs. However, the intricacies of the laws – including the required vaccines, the types of exemptions recognized, and the documentation required for proof of immunization and exemption – vary significantly from state to state.

In Massachusetts, for example, schools may not admit an unimmunized student unless that individual has satisfied the criteria for a medical or religious exemption or the individual is homeless. Massachusetts also requires schools to keep a complete and up-to-date immunization record (or the required exemption documentation) on file for every enrolled student. Other states, such as Connecticut, also require schools to annually fill out a form disclosing student immunization information to the Department of Public Health.

Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that any information on file (and/or provided to state agencies in accordance with applicable laws) is accurate.

Disclosing Immunization Information

Schools may receive requests from parents, teachers, or other individuals to provide information about student immunization rates on campus. Whether exemption rates may be tracked and/or disclosed depends upon applicable laws. Some states, such as Colorado, require schools to track exemption rates and to report this information to students’ parents directly. Other states, by contrast, only permit disclosure to designated state agencies. Connecticut requires schools to annually report student immunization information but defines this information as confidential. In Massachusetts, schools are permitted – but not legally required – to disclose student immunization rates to the Department of Health, which, in turn, makes this information publically available. In some states, disclosure to parents, teachers, or other individuals may violate students’ privacy rights.

Hence, understanding when a school should disclose information, and to whom it may disclose it, is an important component of managing legal risks in this area. Addressing this as part of a comprehensive policy will not only help the school avoid unauthorized disclosure of confidential information, but will also reassure parents who may be concerned about children’s privacy and even deter individuals from asking for immunization information.

Policies For Exclusion Of Non-Immunized Students

Perhaps the most contentious issue that schools will confront is whether a non-immunized student will be excluded from campus, and if so, under what circumstances. Some independent schools have sought to prohibit any non-immunized student from enrolling, regardless of whether the individual meets the state’s exemption criteria. This approach could create potential legal claims, such as discrimination or breach of contract. Moreover, this approach may seem too Draconian.

Accordingly, we recommend implementing a policy that reserves the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or any other communicable disease incident. The goal with such a policy is to provide the school with a wide degree of latitude in responding to situations on campus that affect members of its community. Equally important, the policy will provide parents with notice of the school’s right to act.

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An Immunization And Communicable Disease policy can effectively address all of these issues to ensure that the interests of the school, its students, and its employees are well protected. A well-crafted policy will withstand the future unknown: whether it is measles, Ebola, or any other number of communicable diseases making the headlines, a school can rely upon this policy to adequately and effectively respond.

Finally, another component to an effective risk management strategy is to provide the school with grounds to manage or exclude staff and faculty when the threat of a communicable disease arises. As such, this may be an opportune time to visit the employee handbook’s communicable illness provision to determine if it is in sync with the school’s goals and best practices.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for complying with state vaccine legislation and/or managing non-immunized students on campus, or if you would like our assistance in drafting an Immunization And Communicable Disease policy.

By Sara Goldsmith Schwartz

As of August 8, 2014, Massachusetts employers with 50 or more employees must provide up to 15 days of unpaid leave in any 12-month period for employees’ activities related to being a victim of domestic violence, including seeking medical attention or legal services, securing housing, or attending court proceedings. Massachusetts thus joins more than 20 other states and municipalities requiring such leave. Employees of covered Massachusetts employers may take leave related to their own abuse or the abuse of a covered family member, including a spouse, child, parent, grandparent, grandchild, or sibling.

Employees must give advance notice of their need to use the leave, unless there is a threat of imminent danger to the health or safety of the employee or a member of the employee’s family. Employees must also first exhaust all personal, sick, annual, and vacation leave before receiving unpaid leave, unless the employer’s policy provides otherwise.

The law requires confidentiality for leave-related information. Employers must keep such information confidential and not disclose such information unless disclosure is requested in writing by the employee, ordered by a court, otherwise required by law or in the course of a law enforcement investigation, or necessary to protect the safety of the employee or others employed at the workplace.

Covered employers must notify employees of their rights and responsibilities under the law, including those related to notification requirements and confidentiality.

Similar to other types of job-protected leave, employees who take domestic violence leave are entitled to restoration to their original jobs, or equivalent positions, and are protected from retaliation after taking leave.

We recommend that employers familiarize themselves with the requirements of the law, including its confidentiality provisions, and consult with counsel to prepare a domestic violence leave policy and update their handbooks accordingly.

By Sara Goldsmith Schwartz and Sarah H. Fay

Dog-friendly school campuses have become increasingly controversial in recent months. While there used to be two primary camps (those that encouraged a pet-friendly campus and those that prohibited pets altogether), the lines are getting more blurry (furry?) now. For example, a student may wish to bring the family ferret on campus for show-and-tell or a faculty member may want to nurture hamsters in the classroom to teach students about responsibility. Or a teacher, student, parent or visitor may require a service animal to accompany him or her while on campus.

Adopting written animal-presence policies and practices can help to ensure that a school responds to situations like these in a way that minimizes liability and risk, and maximizes compliance with relevant legal obligations as well as each school’s pet culture.

On the pro-pet side, advocates assert that pet-friendly policies offer benefits like reducing faculty, staff and student stress, improving employee job satisfaction and increasing the overall friendly atmosphere on campus. We see many schools allowing faculty members to keep puppies in the classroom for a few months. But would such a school allow a kitten? A baby snake? How and along what lines do we discriminate regarding pets?

Notably, a service animal may only be lawfully excluded from campus if, after a case-by-case evaluation, a school determines that the particular service animal poses a “direct threat” to the health or safety of others. Thus, the need for a service animal on campus may trump a student or employee’s allergy or pet-phobia (even if deemed a disability under the ADA and thus also requiring an accommodation).

On the no-pet side, one significant risk arises from the possibility that an animal may harm a person, another animal or property. In Massachusetts, for example, an owner or keeper of a dog is strictly liable for the harm it causes. While Massachusetts courts have not addressed the issue of whether an employer may qualify as a “keeper,” two cases in Connecticut have rejected this conclusion under a similar statute. Nonetheless, instances of dog bites in carpool lines are quite common. A school could potentially face liability under a general negligence theory in the event that a pet harms someone or something even if a specific state statute does not address this scenario. Indeed, a school could even be deemed liable to the pet owner if a pet is injured while on campus (accident in the carpool line or such).

In light of these competing schools of thought, independent schools may want to simply prohibit students, their families and employees from bringing any pets or animals on campus. If such a policy seems too draconian (or simply unworkable on, for instance, a boarding school campus), we recommend that schools adopt a written policy requiring anyone who wishes to bring an animal on campus for recreational purposes to sign an indemnification agreement and obtain insurance covering any damage or injury that might be caused by the animal.

If, however, after careful consideration, an independent school decides to welcome pets on campus, we recommend considering some or all of the following policies and practices:

• Adopt a policy that distinguishes between “pets” and “service animals,” as the two categories should be treated differently;
• Require pet owners who wish to bring a pet on campus to sign an indemnification agreement and obtain insurance covering any damage or injury by the pet or to the pet;
• Obtain parental consent from all relevant parents before welcoming pets in the classroom;
• Establish pet-free areas and/or permit individuals with animal-related issues to work from other locations while animals are on campus; and
• Implement a protocol for responding to an animal’s aggressive behavior, including banning poorly behaved pets.

If an independent school prefers to prohibit pets on campus, we recommend addressing the following:

• Adopt a strict no-pet policy that does not differentiate among dogs, cats, puppies, kittens, ferrets, gerbils, etc.;
• Distinguish between pets belonging to faculty who live on campus and pets that are “visiting” campus; and
• Clarify that service animals do not fall within the pet policy and that service animals will only be excluded from campus if, after a case-by-case analysis, the school determines that a particular service animal poses a direct threat to the health and safety of others.

In addition, we recommend updating both Employee and Parent/Student Handbooks to address such pet policies.

If you have any questions about best practices for pet-policies and protocols, please do not hesitate to contact a member of the Firm’s Education Practice Group.

By Sara Goldsmith Schwartz

With the beginning of the academic year underway or imminent, many students are returning to campus for pre-season athletic training. This school year, however, many schools and student-athletes will be governed by new (and perhaps improved) concussion protocols.

Combatting concussions has become a forefront issue in school athletics. Across the nation, legislatures, student athletic associations, and schools are responding to the demand for more comprehensive concussion policies to better protect student-athletes. Indeed, as of January 2014, every state and the District of Columbia had passed legislation regulating the prevention and management of student-athlete traumatic head injuries. In March, the National Athletic Trainers’ Association (NATA) released a new position statement on the management of sports concussions and offered comprehensive guidelines. And just over the summer, California’s governor signed a law that not only limits the number of tackling practice sessions for young football players—to only two, 90-minute full-contact practices per season—but the law also requires one week on the bench for all student-athletes who suffer a concussion.

Although concussion management laws vary from state-to-state, they generally share three pillars—a return-to-play rule, an informed consent requirement, and an education and training obligation. The return-to-play rules regulate the circumstances in which a student-athlete suspected of having a concussion or head injury must be removed from play and when he or she can resume participating in athletics.

Baseline testing is another tool to help manage sports-related concussions. By requiring students to have a pre-season exam to measure balance and brain functioning, medical professionals can better identify and diagnose post-exam head injuries. While no states currently require baseline testing, Rhode Island strongly encourages all youth sports programs (including those operated by private schools) to adopt the practice; and Massachusetts requires public schools and schools that are members of the Massachusetts Interscholastic Athletic Association to mandate that student-athletes provide head injury medical histories.

At independent schools, administrators, coaches, medical support personnel, students, and parents all play a significant role in protecting student-athletes. To help achieve their goal, we recommend including the following components in a comprehensive head injury policy:

• An action plan policy for all students participating in interscholastic athletics;
• Protocols for head injuries, including Return to Activity guidelines;
• Education for parents and students, coaches, medical support employees, and other relevant persons about recognizing and managing traumatic head injuries;
• Requests for student-athlete head injury histories;
• Mandatory baseline testing for all student-athletes;
• Recordkeeping of all head injuries occurring on and off campus; and
• Policies for students who are suffering from concussions.

In addition, we recommend updating Athletics Handbooks to address concussion management and other issues such as medical emergencies, practice guidelines, and academic policies related to participation in athletics.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for student-athlete head injury policies and protocols.

By William E. Hannum III

The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

• Nearly 1 in 5 women (22 million) have been raped in their lifetime.
• Almost 1.6 million men have been raped in their lifetime.
• Nearly half of female survivors were raped before they were 18.
• 1 in 5 women was sexually assaulted while in college.
• Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
• Most victims know their perpetrator.
• 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

• Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
• Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
• In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
• Explore various ways to engage students, looking for whatever may generate their greatest involvement.
• Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
• Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
• Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
• Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
• Provide survivors with appropriate resources and remedies to continue their education.
• Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
• Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

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An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

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William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

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For a copy of the White House report, please click here.

By Sara Goldsmith Schwartz

Should the EEOC be allowed to send an e-mail to 1,000 employees of a company, at their work e-mail accounts, to hunt for evidence against the company?  One New York employer has sued the EEOC in federal court challenging the EEOC’s use of this tactic.

The EEOC’s e-mail told employees that the EEOC was investigating claims of discrimination by the employer, and contained a link to an internet survey about the employer.  The employer apparently did not receive advance notice of the email, and the email did not specify that the EEOC’s inquiry was limited to age discrimination claims and that no finding of discrimination had been made.

The employer sued the EEOC pursuant to the Administrative Procedures Act and the U.S. Constitution, claiming that the e-mail was an abuse of power, an unreasonable search in violation of the Fourth Amendment, and an infringement on the employer’s constitutional right to due process.  The lawsuit seeks an injunction that would prohibit the EEOC from using any information it gathered through the mass email.

The EEOC has moved to dismiss the suit, arguing that other methods of communication would have had the same impact, and that the e-mail was within the EEOC’s investigative power.  The court has not yet ruled on the motion.

By Sara Goldsmith Schwartz

You may have observed the recent increase in news coverage of sexting incidents involving teenagers.  For example, a 16-year-old California high school student was recently arrested on a felony charge of distributing child pornography after he posted nude photos of teenage girls via Twitter. Two of the girls (who had sent the boy naked photos) were also cited for misdemeanor distribution of obscene matter, because their actions are considered a crime under California law.  In Vermont, an 18-year-old boarding student was recently charged with a misdemeanor for possession of child pornography after investigators found nude images of a 14-year-old girl on his cell phone (again, the girl had sent the boy these photos).

These examples, and other like incidents, are a sobering reminder that although sexting may be a spur of the moment action by a teenager with no criminal intent, sexting can quickly spin completely out of the teenager’s control, and is more often being construed as a criminal act under the law.  All 50 states have laws prohibiting the production, possession and distribution of images depicting sexually explicit activities involving a minor.  Since 2009, at least 20 states have enacted laws to specifically address youth sexting (i.e., Arizona, Colorado, Connecticut, Florida, Hawaii, Illinois, Louisiana, Missouri, Nebraska, New York, New Jersey, Nevada, North Dakota, Oregon, Rhode Island, Pennsylvania, South Dakota, Texas, Utah, Vermont).

Teenagers are generally unaware that sending nude or sexually explicit photographs of themselves or other minors may subject them to serious legal consequences, the impact of which could endure for many years.  For instance, prosecution for child pornography can lead to an individual being included on the national sex offender list.

In an effort to help prevent sexting, we recommend that independent schools take the following measures:

• Ensure that the school’s policies and practices clearly define sexting (including prohibiting such conduct by both the sender and the recipient of the explicit material), noting that it is not acceptable, and outlining the potential consequences for engaging in sexting (including potential criminal charges);
• Ensure that the school’s policies and procedures adequately address sexting involving students, employees, volunteers and all other individuals associated with the school;
• Evaluate the school’s protocols on related topics, such as any electronic communications policy, acceptable use policy, and policies on sexual abuse, sexual harassment, bullying, harassment, retaliation and intimidation; and
• Educate students, parents, employees and volunteers regarding the school’s policies and procedures pertaining to electronic communications, including sexting and the serious consequences that may result from it.

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Please do not hesitate to contact us if you have any questions regarding policies and procedures that may help your school prevent and effectively respond to incidents of sexting.  The Firm offers sexting prevention programs tailored to students, parents and school employees.

By Sara Goldsmith Schwartz

You may have seen the recent news coverage of the bus monitor who was bullied by students. This incident is a sobering reminder that employees can become victims of bullying by students. As reported by news outlets around the country, the incident involved a 68-year-old school bus monitor and four seventh grade students from upstate New York. The students made inappropriate verbal remarks and touched the school bus monitor during a bus ride. The bullying incident was recorded on a cellular phone and posted on YouTube. The video received tremendous public attention and the four students involved in the incident were suspended from school – for one year.

While student-on-student bullying is frequently discussed, student-on-employee bullying has become an increasingly common problem. Clearly, schools are vulnerable to legal claims resulting from such bullying incidents.

In order to foster a culture in which bullying is not tolerated and bullying incidents are quickly and effectively resolved, we recommend that independent schools take the following measures:

• Conduct a review of the school’s policies and procedures for preventing and responding to allegations of bullying;
• Ensure that the school’s policies and practices are in compliance with applicable state and federal laws, as well as recommended best practices;
• Ensure that the school’s policies and procedures adequately address bullying by and against students, employees, volunteers and all other individuals associated with the school;
• Evaluate the school’s protocols on the related topics of hazing, intimidation and retaliation; and
• Educate employees, parents, volunteers and students regarding the school’s policies and procedures pertaining to bullying.

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Please do not hesitate to contact us if you have any questions regarding bullying prevention and response policies, procedures, and training programs. The Firm conducts bullying prevention training programs tailored to the needs of independent schools, colleges and universities.