Learn.uvm.edu
The Increasing Legal Mandates for College Training
October 10, 2012
Legal Issues in Higher Education
22nd Annual Conference
University of Vermont
Ann H. Franke[1]
Wise Results, LLC
Washington DC
I. Introduction
Fifty years ago, the words training and compliance were not part of the higher education legal lexicon. Today educational institutions recognize the need for internal education.[2] Training is a necessary component in legal compliance programs and, more generally, in reducing legal problems in colleges and universities. [3]
This outline covers three major topics: training that is legally required or legally driven; general, voluntary training on legal topics; and assorted training ideas. It concludes with an extensive set of resources. The word training is used for convenience. Many educators feel that training applies to canines but not to humans.[4] Terms such as professional development, workshop, and symposium carry fewer negative connotations and are often preferable on campus. Consider the word training here as shorthand for the loftier vocabulary. Two appendices offer ideas for training resources on, respectively, sexual violence, and child molestation.
II. Training that Is Legally Required or Legally Driven
A. Background. Over the past several decades, an amalgam of statutes, regulations, and judicial decisions has quietly imposed training obligations on colleges and universities. The requirements can arise in different ways. A state legislature may decide that all public agencies, including public colleges and universities, must provide certain training. A more ambitious state legislature may impose training obligations on all employers in the state, including both private and public higher education institutions. The federal government has conditioned receipt of federal contracts and research grants upon training on various subjects. Perhaps most curiously, the United States Sentencing Commission has influenced institutions to adopt training. These developments, and the subjects of the required training, are discussed further below. This section also covers training that is legally driven by settlement agreements or efforts to comply with legal obligations. It endeavors to be comprehensive but does not claim to have succeeded. Other training mandates may well exist.
B. Elements. Legally-mandated training takes different forms. Training may be required for all employees or limited audiences.[5] Some mandates apply only to supervisors and managers, others only to researchers working under federal grants. The mandates typically do not specify whether training must be provided face-to-face or on-line. Some require “periodic” refreshers, while others set precise time periods for retraining. Some say the training must be “effective,” while others detail the subjects to be covered. As discussed below, one requirement even reaches undergraduates.
C. Judicial Developments. On the judicial side, three decisions of the United States Supreme Court in the late 1990’s addressing discrimination and harassment have given legal force to the development of campus training:
1. Kolstad v. American Dental Association, 527 U.S. 526 (1999). An employer’s prevention efforts can reduce its exposure to punitive damages for discrimination.
2. Burlington Industries v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). An employer’s efforts to prevent sexual harassment can serve as an affirmative defense if the case presents these three elements: (a) a supervisor harassed a subordinate; (b) the subordinate suffered no tangible job detriment such as demotion or termination; and (c) the subordinate unreasonably failed to complain through available internal channels.
The Supreme Court did not technically require employers covered by Title VII to conduct training, a stance that would have usurped Congress’ role. Still, a college or university that omits training as an element of its prevention program may face harsh financial consequences if it is found liable for discrimination or harassment. Since the late 1990’s, training has become a standard component of campus programs to prevent discrimination and harassment.
D. Topics of Legally Mandated Training. Legislatures and executive agencies, both state and federal, can create mandates for campus training on topics they deem to be of special importance.
1. Sexual Harassment. State laws and regulations may require sexual harassment training. The requirements often cover only public employees. California, Connecticut, and Maine, however, require private employers to provide sexual harassment training. Other jurisdictions that mandate or, in some instances encourage, sexual harassment training at least for public employees include: Colorado, Florida, Hawai’i, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nevada, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and the Virgin Islands.[6]
At the federal agency level, the EEOC has strongly endorsed training for managers and supervisors:[7]
If feasible, the employer should provide training to all employees to ensure that they understand their rights and responsibilities [under the entity’s sexual harassment policy]….
An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.
Apart from legal mandates, the preferred approach to discrimination and harassment training today is to cover all protected categories, not just sex. A legally-driven program usefully addresses religion, disability, race, and other types of discrimination and harassment.
2. Sexual Violence. On April 4, 2011, the Office for Civil Rights, U.S. Department of Education, issued a letter to the higher education community on sexual violence.[8] The letter is one in a series of Dear Colleague letters that OCR issues from time to time. The letter on sexual violence explains OCR's position that Title IX prohibits not only sexual discrimination and harassment but also sexual violence. While the letter purported merely to clarify existing legal requirements rather than to enlarge them, many higher education lawyers see the letter as significantly expanding institutional obligations. This leaves a gray zone on whether the letter suggests good practices or imposes new requirements. The letter, which is 19 single-spaced pages, makes numerous references to training. Here are some examples:
OCR recommends that all schools implement preventive education programs …. Schools may want to include these education programs in their (1) orientation programs for new students, faculty, staff, and employees; (2) training for students who serve as advisors in residence halls; (3) training for student athletes and coaches; and (4) school assemblies and "back to school nights." These programs should include a discussion of what constitutes sexual harassment and sexual violence, the school's policies and disciplinary procedures, and the consequences of violating these policies.
The education programs also should include information aimed at encouraging students to report incidents of sexual violence to the appropriate school and law enforcement authorities. (pp. 14-15)
The letter further recommends:
• training all school law enforcement unit personnel on the school's Title IX responsibilities and handling of sexual harassment or violence complaints;
• training all employees who interact with students regularly on recognizing and appropriately addressing allegations of sexual harassment or violence under Title IX. (p. 17)
Elsewhere the letter addresses training for Title IX coordinators. The training suggestions ̵ or requirements ̵ are couched in broad terms, and institutions continue to interpret and implement them.
3. Workplace Safety. OSHA has more than 100 training requirements in its standards, which address subjects such as hazardous chemicals, blood borne pathogens, welding, and work in confined spaces or high places. OSHA states that “training is an essential part of every employer’s safety and health program for protecting workers from injuries and illnesses.”[9] Examples of OSHA training requirements include:[10]
a. “Before implementing the emergency action plan, the employer shall designate
and train a sufficient number of persons to assist in the safe and orderly
emergency evacuation of employees.”
b. “The employer shall provide training in the use and care of all hearing
protectors provided to employees. The employer shall institute a training program for all employees who are exposed to noise at or above an 8-hour time weighted average of 85 decibels, and shall ensure employee participation in such program.”
c. “Employees assigned to work with storage batteries shall be instructed in
emergency procedures such as dealing with accidental acid spills.”
d. “The employer shall assure that all employees who are assigned to workplaces where there is exposure to formaldehyde participate in a training program, except where the employer can show, using objective data, that employees are not exposed to formaldehyde at or above 0.1 ppm, the employer is not required to provide training….Frequency. Employers shall provide such information and training to employees at the time of initial assignment, and whenever a new exposure to formaldehyde is introduced into the work. The training shall be repeated at least annually.” (Emphases added.)
State workplace safety laws may supplement OSHA requirements. While lawyers are generally not qualified to provide workplace safety training, they can play an important role in monitoring that training is occurring and that it meets statutory requirements.
OSHA standards apply only to employees. Many institutions voluntarily extend OSHA training requirements to students who use hazardous chemicals, face potential exposure to blood borne pathogens, or encounter other potential hazards. Consider, for example, theater students who adjust lighting on a high theater catwalk or art students who weld to create sculptures.
4. Ethics, Conflict of Interest, and Fair Business Practices. The past ten years have witnessed significant legal developments in the areas of ethics, conflict of interest, and fair business practices. Training is now legally mandated under the Federal Acquisition Regulations, and it is legally very wise under the Federal Sentencing Guidelines. State requirements also exist.
a. Federal Acquisition Regulations. The 2007 and 2008 amendments to the Federal Acquisition Regulations (FAR) require entities with large federal contracts, among other steps, to train certain employees on business ethics. The mandate applies to both private- and public-sector contractors with federal contracts worth at least $5 million and requiring at least 120 days to perform.[11]
b. Federal Sentencing Guidelines. The FAR requirements mirror those found in the Federal Sentencing Guidelines for Organizations (FSG). Under the FSG, organizations should conduct training on ethics and compliance.[12] The training should reach, among others, high-level personnel and the governing board.
The FSG are relevant to colleges and universities in two respects. First, in the event that an institution has violated federal criminal law, the existence of an ethics training program can reduce its potential exposure to fines, restitution, and probation.
Second, the FSG seek to establish general standards of good corporate behavior. As one scholar has noted, in adopting the sentencing guidelines for organizations the United States Sentencing Commission sought to “contribute, over time, to a more healthy, values-based way of doing business in America.” The Sentencing Commission plainly lacks direct authority over all American business but instead exerts its influence indirectly. Other agencies have mirrored the FSG in their own regulations and enforcement efforts, including the Environmental Protection Agency and the Department of Health and Human Services.[13]
c. State Requirements. California, Georgia, Illinois, and New Jersey are among the states now requiring ethics training in state agencies, including public colleges and universities. The mandates may apply to all employees or only those in designated positions.
5. Research Compliance. The federal government imposes many and varied training requirements on colleges and universities that receive federal research support. Several of the major obligations are discussed below.
a. The Department of Health and Human Services requires its grantees conducting human subject research to promise to comply with all federal requirements for such research. The grantees must execute an “assurance of compliance,” which includes promises of compliance for investigators and members of Institutional Review Boards (IRBs).[14] NIH grantees, among others, must abide by the requirements, which are enforced by the Office for Human Research Protections (OHRP). [15] Another example of strongly-recommended training that comes close to being mandatory is found in OHRP's Investigator Responsibilities ̵ Frequently Asked Questions:[16]
Question 12: Must investigators obtain training in the protection of human subjects?
The HHS regulations for the protection of human subjects (45 CFR part 46) do not require investigators to obtain training in the protection of human subjects in research. However, an institution holding an OHRP-approved Federalwide Assurance (FWA) is responsible for ensuring that its investigators conducting HHS-conducted or -supported human subjects research understand and act in accordance with the requirements of the HHS regulations for the protection of human subjects. Therefore, as stated in the Terms of the FWA, OHRP strongly recommends that institutions and their designated IRBs establish training and oversight mechanisms (appropriate to the nature and volume of their research) to ensure that investigators maintain continuing knowledge of, and comply with, the following:
relevant ethical principles;
relevant federal regulations;
written IRB procedures;
OHRP guidance;
other applicable guidance;
state and local laws; and
institutional policies for the protection of human subjects.
b. The National Science Foundation requires all grant applicants to conduct training on research ethics. The force behind their requirements is the unfortunately-named “America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Act.”[17] Section 7009 of the Act, which is popularly known as the “America COMPETES Act,” requires every grant proposal to address training. The proposal must include “a plan to provide appropriate training and oversight in the responsible and ethical conduct of research to undergraduate students, graduate students, and postdoctoral researchers participating in the proposed research project.''[18] The Act became law in 2007, and as of January 4, 2010, every applicant for NSF financial assistance became required to describe its plans for training.[19]
c. NIH requires all applicants for the Institutional National Research Service Award Research Training Grants to provide training in the responsible conduct of research. Recommended subjects to be covered in the training are quite extensive.[20]
6. Health Information. The privacy and security rules under the Health Insurance Portability and Accountability Act of 1996 require a covered entity to provide annual training for employees. As the regulations explain:
45 CFR §164.530(b). (1) Standard: Training. A covered entity must train all members of its workforce on the policies and procedures with respect to protected health information required by this subpart and subpart D of this part, as necessary and appropriate for the members of the workforce to carry out their functions within the covered entity.
(2) Implementation specifications: Training. (i) A covered entity must provide training that meets the requirements of paragraph (b)(1) of this section, as follows:
(A) To each member of the covered entity's workforce by no later than the compliance date for the covered entity;
(B) Thereafter, to each new member of the workforce within a reasonable period of time after the person joins the covered entity's workforce; and
(C) To each member of the covered entity's workforce whose functions are affected by a material change in the policies or procedures required by this subpart or subpart D of this part, within a reasonable period of time after the material change becomes effective in accordance with paragraph (i) of this section.
(ii) A covered entity must document that the training as described in paragraph (b)(2)(i) of this section has been provided, as required by paragraph (j) of this section.
45 CFR §164.308(b). A covered entity must….(5)(i) Standard: Security awareness and training. Implement a security awareness and training program for all members of its workforce (including management).
7. Student Risk Management. In 2007 Texas adopted a law requiring the leaders of, and advisors to, student organizations to attend risk management training.[21] The training must cover seven designated topics: alcohol and drugs, hazing, sexual harassment, fire arms and weapons, travel, conduct at organization events, and adoption of a risk management policy. An advisor who is not a faculty or staff member of the institution may satisfy the requirement via online training.
8. Child Abuse and Neglect. In the wake of the 2011 child sex abuse tragedy at The Pennsylvania State University, campus training on child abuse and neglect attracted new attention. Some jurisdictions already had in place training requirements for individuals legally designated as mandatory reporters of child abuse. Campus counselors, physicians, nurses, and athletic coaches are commonly among the categories of staff who must, under state law, report suspected or known child abuse. Some jurisdictions require mandatory reporters to complete training and some strongly recommend it.[22]
Texas adopted a law in 2011 titled "Training and Examination Program for Employees of Campus Programs for Minors on Warning Signs of Sexual Abuse and Child Molestation."[23] Employees in campus youth-serving programs must complete state-approved "Sexual Abuse Awareness Training" at least every two years. Section 51.976 of the Texas Education Code.
E. Other Legally-Driven Training. Training may be a component of voluntary settlement agreements and consent decrees. It can also be a strategy to deal with discrimination or harassment matters in which a complainant declines to pursue a complaint.
1. Consent Decrees and Settlement Agreements. Training is often an element, along with financial terms, in settling claims, particularly those with government enforcement agencies. Numerous examples may be found.
a. The University of Louisiana at Monroe agreed to train all supervisory and managerial employees for the five-year duration of a consent decree with the EEOC resolving claims of age discrimination and retaliation stemming from its policy not to rehire retired faculty.[24]
b. In a settlement with the EEOC, Chapman University agreed to provide live training on sex discrimination, including harassment and retaliation, to all employees of its college of film and media arts, along with additional training for all supervisors and managers.[25]
b. Lafayette College agreed in a two-year consent decree with the EEOC to provide, among other elements of relief, annual harassment training for all managers.[26]
c. In 2008 the EEOC settled with Benedict College over race discrimination claims, and the terms included discrimination training for all administrators, faculty, and employees.[27]
d. In May, 2010, John Jay College, part of the CUNY system, agreed to train its recruitment personnel on their non-discrimination responsibilities, as part of a settlement of a claim of citizen-status discrimination.[28]
e. The University of Incarnate Word settled a class action lawsuit brought by the EEOC with an agreement to, among other elements, regularly to train its supervisors and managers on national origin discrimination.[29]
f. The Office of Federal Contract Compliance Programs, the Office for Civil Rights, the Federal Communications Commission, and other agencies have included training in settlements with colleges and universities.[30]
g. State entities, too, sometimes include training as an element of settlements. In 2008 New York Attorney General Andrew Cuomo, who was investigating fraud in student financial aid, entered into a settlement with the College Board. The College Board agreed, among other elements, to conduct in-person and web-based training for financial aid administrators.[31]
h. In a particularly elaborate provision, the Arizona Attorney General required the Pima County Community College District to train its disability support resource (DSR) personnel:
To provide better services to disabled students, Defendant shall implement substantial training for DSR employees as well as other employees substantially involved in the provision of DSR services to Defendant's students, in accordance with the Outline of Training Relating to Students with Disabilities, attached as Exhibit D. This training shall not be less than three hours per session, shall be provided by a qualified outside entity or individual, shall commence on or before sixty (60) days from the effective date of this Settlement Agreement, and shall be completed within one hundred eighty (180) days thereafter. For one year from the effective date of this Settlement Agreement, Defendant shall keep records of the names of the persons who attended the training and the training dates, and shall make those records available to Plaintiff, upon request.[32]
Private settlement agreements may also require campus training designed to ameliorate the conditions that led to the dispute.
2. Remedial Discrimination and Harassment Training. As a final example of legally-driven training, the Office for Civil Rights in the Department of Education has suggested training as a potential option in situations in which a student making an allegation of harassment declines to pursue a complaint.[33]
Although a student's request to have his or her name withheld may limit the school's ability to respond fully to an individual complaint of harassment, other means may be available to address the harassment. There are steps a recipient can take to limit the effects of the alleged harassment and prevent its recurrence without initiating formal action against the alleged harasser or revealing the identity of the complainant. Examples include conducting sexual harassment training for the school site or academic department where the problem occurred, taking a student survey concerning any problems with harassment, or implementing other systemic measures at the site or department where the alleged harassment has occurred. (Emphasis added.)
The document offers additional considerations on situations in which a student declines to go forward with a harassment complaint.
III. General and Voluntary Training on Legal Topics
A. Voluntary Efforts. Beyond legal mandates, many institutions provide training on legal issues to department chairs, deans, and other academics. Through training, institutions seek to avoid or reduce legal problems and to enhance general operational effectiveness. They may also seek to reduce the risk that problems will recur. The University of California system, for example, implemented an ethics training requirement for its 230,000 employees in the aftermath of much-publicized problems over executive compensation.[34]
B. Benefits. Benefits of training are commonly understood to include:
1. Better compliance with institutional policies and legal duties
2. Increased reporting of problems to those designated to address them
3. Earlier reporting of problems, when they are more susceptible to resolution
As noted above, training on discrimination and harassment may offer added legal benefits should the institution be found liable on those grounds.
C. Selecting Topics. In developing legal content for campus training programs, particularly for department chairs, consider these key issues:
1. Does the audience know and understand the roles of relevant administrators, including the institution's legal staff? They can introduce themselves and explain what they do.
2. Does the audience understand its role? This can be particularly challenging for new department chairs, as they take on administrative responsibilities. Their relationships with their colleagues necessarily change, and they have new obligations to the institution. Confidentiality, following policies, and seeking assistance with problems can be important topics. In a faculty collective bargaining context, chairs may be in the bargaining unit or outside it. In either case, they often need assistance in understanding their responsibilities to the institution, the faculty, and the collective bargaining agreement.
3. What types of problems have arisen in the past? Reflect on legal issues and organizational challenges of the last three or four years. If any topics have recurred, consider whether they merit attention in training. Similarly, consider whether any major institutional policies are honored more in the breach than the observance. If so, address those policies in training.
4. What’s new? Look at recent changes in campus policies, state laws, or other elements shaping campus life. Training can equip audiences to deal with new policies or expectations.
5. How would you like the audience to handle future questions that may involve legal topics? Consider whether chairs should bring questions forward to their deans or straight to campus legal counsel. Provide guidance in training, and reassure the audience that raising issues and asking questions is generally desirable, not a sign of weak or ineffective leadership. Many lawyers invite administrators and chairs who raise legal questions to accompany the questions with their own recommended course of action, drawn from academic principles and institutional mission. Many chairs appreciate a discussion of the relationship between legal advice and academic policy.
6. On what legal issues does the audience want more information? Consider a short electronic query soliciting input from a few people or from the entire group. Include their preferred topics in the program, and mention that those topics respond to audience demand.
D. Potential Topics. Topics for department chair training can include:
Academic freedom & free speech
Affirmative action
Business ethics
Computer use
Contracts
Copyright/fair use
Defamation
Disability
Documentation & dismissal
EEO issues, general
Evaluating colleagues fairly
FERPA
Handling problem employees
Handling difficult students & parents
Handling sexual harassment complaints
Harassment, based on any protected characteristic
Hiring, including recruiting & interviewing
Immigration – hiring non-resident aliens, permanent resident applications
Indemnification
Leaves of absence
Open meeting & open record laws
Peer review of teaching
Post-tenure review
Privacy
Progressive discipline
Sabbaticals
Sexual harassment
State law on confidentiality of personnel files
Suicide
Tenure process
Theft
Torts -- injuries
Whistleblowers & retaliation
E. Finding Training Resources. Whatever the topics to be covered, one need not develop campus training materials from a blank slate A wealth of resources already exists. Much is freely available and even more can be purchased from vendors. Here are the best no-cost training materials.
1. NACUA Clearinghouse of Training Materials for the Practice of Preventive Law in Higher Education. The NACUA home page, , contains a link to the Clearinghouse, which is restricted to members. Members may adapt and use the materials for preventive law training. Distribution is limited to the members’ own faculty, staff, and students and to other NACUA members. The materials are arranged by topic under the following categories:
ADA and FMLA
Compliance
Contracts
Dispute Resolution
Diversity and Civil Rights
Employment
Endowments
Environment
FERPA and Privacy Issues
First Amendment
General Counsel Office Management
General Information
Harassment
HIPAA
Immigration
Intellectual Property
International Programs
Legal Process/Litigation
Research
Security
Student Life
Sustainable Campus
Tax
The General Information section, above, includes some items on department chair training and faculty orientation. The Clearinghouse welcomes submission of additional materials, via email to training@. NACUA outlines may also contain potential training materials.
2. Campus Legal Information Clearinghouse. The marvelous website maintained by the general counsel’s office at The Catholic University of America includes useful training items. After clicking on a topic, look in the left margin for the link, in small font, to “Publications, Videos, and Web Tutorials.” Under the topic FERPA, for example, one finds links to three on-line tutorials developed by different universities.
3. Google. Google searches restricted to .edu domains can yield many useful items. After typing the chosen search terms into the Google search box, add site:.edu. This restricts the search just to .edu websites. Take this search, for example, in which the quote marks keep the words together as a phrase:
"department chair" legal issues site:.edu
The results include, among many other items, a website that the American Council on Education created for department chairs, terrific materials for chairs from many institutions, and notices about workshops around the country. Needless to say, permission from authors should be secured before using any materials not in the public domain. Another useful search is
“compliance training” site:.edu
G. Attendance Policies. While department chairs and deans will generally attend training programs, attracting faculty audiences can be more challenging. A perennial issue is whether faculty attendance at training should be mandatory or voluntary. The choice need not be that stark, as different forms of persuasion can be applied. Here are some options to encourage, or strongly encourage, attendance:
1. A general announcement, “please join us for….”
2. A general announcement, “please join us for….refreshments will be served.”
3. A general announcement, “please join us for….lunch will be served.”
4. A general announcement from the dean or provost, “I look forward to seeing everyone at….”
5. A personal, signed letter from the dean or provost, “I look forward to seeing you at….”
6. With multiple programs, a follow up letter from the dean or provost, “Since you did not attend the workshop last week, please let me know which of the remaining programs you will be attending.”
7. An invitation stating, “Your attendance is important for legal reasons and factors into interpretation of our campus indemnification policy should you face legal proceedings.”
8. An invitation stating, “If you do not attend, the institution may choose not to indemnify you….”
9. An invitation stating that the provost will raffle off a graduate assistantship to one lucky professor. “Must be present to win.”
H. Attendance Controversies. Several recent situations about problems with training are instructive. While all three involved state-required training, they offer lessons to institutions considering imposing their own mandates.
1. University of California at Irvine. A prominent molecular biologist at the University of California at Irvine tested the university’s resolve in mandating training in 2008. As a supervisor, the professor was required by state law to take sexual harassment training, which the university offered online or in-person. He openly refused, claiming the training was a sham and besmirched his reputation. The provost ordered that any supervisor who had not taken the training by a certain date should be relieved of supervisory responsibilities. The university removed the molecular biologist’s authority to supervise scientists and others in his laboratory. The university’s next step was a deadline after which non-compliant supervisors would be placed on unpaid leave. Fearing for their own jobs, staff members working on the professor’s grants encouraged him to comply. The professor said he would take the training if the university executed a disclaimer that he was required to take it to remain employed and that he had never sexually harassed anyone. The university refused and placed the professor on unpaid leave. He resigned to take a research position in Buffalo. The professor ultimately withdrew the resignation and took the training, reporting that he did so because his departure would have negatively affected two of his staff scientists.[35]
2. Southern Illinois University at Carbondale. The Illinois Executive Inspector General faulted, among others, 65 professors at Southern Illinois University at Carbondale for completing, and passing, an on-line ethics course and 10-question quiz in less than 10 minutes.[36] The 65 professors were advised that they needed to study the material and sign a document titled “Ethics Orientation for Noncompliant Employees.” If they failed to do so, they risked punishment including loss of their positions. Two faculty members sued the state to invalidate what they described as an unwritten rule requiring them to devote an unspecified minimum amount of time to the course and test. A year later the parties settled the lawsuit in what the plaintiffs described as an “unconditional surrender” by the state. One of the faculty members noted that the next time he took the on-line ethics course, it contained only two questions: Did you read and understand the material? Are you aware that taking this exam is mandated by law?
3. Professor Lou van den Dries, a mathematician at the University of Illinois Urbana ̵ Champaign, refused to take the state-mandated ethics training from 2006 to 2010. Each year he documented his feelings about the online training, as in this example:
Dear Sheldon,
I am on sabbatical at UCLA. Anyway, I consider this training illegitimate, have never done, and will never do it. I'd get physically unwell in the attempt. I have decided that this year I will also refuse to sign the form acknowledging that I have been too late in doing this training (and which for mysterious reasons counts as having done it anyway).
My understanding is that as a tenured faculty member I am a citizen of an academic community rather than an employee, certainly in matters of this nature. Citizenship is incompatible with mandatory annual "ethics training."
Please forward this message to the dean. I don't mind the dean and other administrators communicating with me via you, but wonder if it isn't a bit inefficient. I'd be willing to discuss the *merits* of ethics training with deans and provosts, as long as it is clear that they are not my bosses (nor are you). Faculty cannot be ordered around as if they were part of the "chain of command." I am enjoying my sabbatical.
Best,
Lou
The Illinois Executive Inspector General brought a complaint against Professor van den Dries over his failure to complete the ethics training. The parties eventually settled the matter, with Professor van den Dries agreeing to take the training in 2011 and subsequent years and to pay a $500 fine.[37]
Campus training is not always unpopular. At North Carolina A&T University, for example, an inaugural session of voluntary ethics training was oversubscribed.[38]
IV. Assorted Training Ideas
This section offers practical ideas on training. It includes a chart of issues and solutions, some do’s and don’ts on training, and final thoughts on training effectiveness and risk.
A. Common Problems and Solution. Here are some common problems and solutions on campus face-to-face training sessions.
|Issue |Campus Life |Challenge in Training |Some Solutions |
|Time |Faculty and chairs are busy people |Hard to find time for |Add segments on legal issues into orientation, |
| | |programs |retreats, department meetings, Faculty Senate |
| | | |meetings, and other existing events.[39] |
| | | | |
| | | |Consult with faculty leaders about on-line options |
|Autonomy |Faculty are used to planning their |Hard to attract them to |“Get them early.” Newly-hired faculty are generally |
| |own time |programs |receptive. |
| | | | |
| | |Prospective attendees may |Have provost or dean issue invitations. |
| | |actively object to | |
| | |participating |Serve food. |
| | | | |
| | | |One provost raffled off a graduate assistantship to |
| | | |program attendees! |
| | | | |
| | | |Consider mandatory training, discussed in text. |
| | | | |
| | | |Don’t overreact to a small number of vocal objectors. |
|Professional |Faculty are unused to other people |“Why do I need to go?” |Explain goals such as legal compliance, organizational|
|Development (related |directing their professional | |effectiveness, and policy awareness. |
|to autonomy) |development | | |
|Habits of Mind |Many faculty are inquisitive and |Program content can be |Leader should be prepared for this possibility. Offer |
| |can ask loads of questions |“derailed” by nitpicky |to discuss privately with individual after session. |
| | |audience members | |
|Turnover |Adjuncts come and go by semester; |Hard to reach the whole |Decide upon necessary training for transient groups |
| |so do graduate assistants and |audience; need to keep |such as adjuncts, then develop an on-going routine. |
| |others |repeating training |Consider adding legal content into orientation |
| | | |programs. On-line programs may be helpful. |
|YOUR ISSUES | | | |
| | | | |
| | | | |
| | | | |
| | | | |
| | | | |
B. Do’s And Don'ts. Keep these tips in mind in developing and conducting training.
DO…
• Accommodate disabilities as needed.[40]
• Include a disclaimer on materials distributed to participants, e.g., “For discussion purposes only.”
• Interact with the audience.
• Respond to inappropriate comments from an audience member. Options include “I’d like to discuss that privately with you after the session” or “That may be your view, but the university requires X.”
• Avoid giving legal advice during a workshop.
• Maintain documentation that training occurred.[41]
DON’T
• Be a bore.
• Create wordy PowerPoints.
• Go into excessive detail.
• Fool them, or yourself, into thinking you can turn them into lawyers in 20 minutes or 2 hours.
• Make fun of anyone.
• Try to change people’s fundamental beliefs. They are entitled to their opinions and beliefs. It’s their behavior that must comport with the institution’s reasonable expectations.
• Allow audience members to discuss privileged information, lest they lose the privilege.
• Use an audience member as an example of a wrongdoer. “Say Steve in the front row harasses a student in his class.” Steve’s attention will be derailed; he may be resentful; and the wrongdoer label just might stick, even unconsciously, in someone’s mind.
C. Training Effectiveness and Risks
1. Does training work? One can offer some general conclusions. With adults, it is most effective when it is realistic and directly relevant to them. It works best when it is interactive, not simply lecture. Campus training should not be designed to change people’s beliefs or values, rather to help them understand their professional obligations. From a general perspective, training effectiveness is an area ripe for further research.
2. Training is not without risks. Consider these observations from a United States Sentencing Commission report:[42]
D. The Litigation Dilemma. The limitations of these legal protections have very direct consequences on the incentive to create or administer compliance programs.383 For example, training is potentially riddled with peril because of the litigation dilemma. It is arguable that the best training may occur when trainers and managers create a trusting environment in which participants can open up and discuss their real concerns in the workplace. Skilled trainers and managers can use these live scenarios in several ways. They may be able to dispel participants’ perceptions by pointing out that their understanding of the situation may be either incomplete or inaccurate. If the information is true, it could provide a meaningful way of reporting problems or weaknesses, which, in turn, could be rectified by the appropriate people within the organization.
Unfortunately, companies that are the most effective in accomplishing this level of training are placed at the most risk of having the information used against them. Companies that create this environment of trust and get their participants to discuss their true workplace concerns risk having that information used against them by adversaries in other litigation. In light of this substantial risk, organizations may well conclude that it may be safer to use “canned” training scenarios from outside the organization, or cases which have been so sanitized that they may lose their power and relevance to that particular organization. Effectiveness will be sacrificed to safety.
Bearing on this issue is the fact that only 52% of the respondents to a recent 2003 survey found that the ethics training was “very useful” and 39% said that it was “somewhat useful,”385 The question is legitimately raised as to whether this “lack of helpfulness” is constrained by the “litigation dilemma” in the training of employees. (Footnotes omitted.)
Educational institutions will most often choose effective training and work to minimize the litigation risks. Disclaimers, skilled presenters, and solid content can reduce the threat of problems arising from training.
In the last analysis, we are left with the question of whether training works. The question applies with special force to legally-mandated training. Educational institutions are deeply committed to transmitting disciplinary knowledge. They may, however, lack appetite or capacity for training their own faculty and staff members. In an era championing evidence-based practices, federal and state legislatures and agencies would do well to examine the question of training effectiveness before further increasing the training obligations of colleges and universities.
SELECTED RESOURCES
Campus Legal Information Clearinghouse
Collaborative Institutional Training Initiative (CITI)
Training for members of Institutional Review Boards, free
Federal Sentencing Guidelines Manual and Appendices (2011)
Chapter Eight, Sentencing of Organizations (p. 504)
Guidelines/2011_Guidelines/Manual_PDF/2011_Guidelines_Manual_Full.pdf
Franke, Ann, ed., Employment Discrimination Training for Colleges and Universities, compendium from National Association of College and University Attorneys. 2002. Out-of-print. Contact author for further information.
Global Ethics Education Initiative
Middle East Research Ethics Training Initiative
Martin, Peter W., “How to Prepare Course Presentations for Online or Disk Delivery: A Step-by-Step Tutorial”
Merchasin, Carol M., Mindy H. Chapman, and Jeff Polisky, Case Dismissed! Taking Your Harassment Prevention Training to Trial (American Bar Association, 2d ed., 2005)
NACUA Clearinghouse of Training Materials for the Practice of Preventive Law in Higher Education
lrs/TrainingMaterials/start.asp
New Jersey State Ethics Commission
On-line training for public college and university trustees
North Carolina State University
Faculty search committee training video, with transcript
ncsu.edu/oeo-training/search/video_transcript_1.htm
OSHA, Training Requirements in OSHA Standards, publication 2254 Publications/2254.html
Pike, Bob, Lynn Solem, and Dan Arch, One-on-One Training: How to Effectively Train One Person at a Time (Jossey-Bass 2000)
Research Ethics Training Curriculum
For international research involving human subjects, free
Rutgers University
On-line ethics training narrated PowerPoint, 35 minutes
University of California, System-wide Office of Ethics, Compliance & Audit Services
Excellent collection of training materials
universityofcalifornia.edu/compaudit/educationtrng.html
University of Rochester, Resources for Search Committees
Comprehensive collection of items that explore the search process
rochester.edu/diversity/faculty/facultysearch.html
APPENDIX A
TRAINING RESOURCES ON SEXUAL VIOLENCE:
LOW-COST TOOLS FOR COMPLYING
WITH THE “DEAR COLLEAGUE LETTER”
Ann Franke[43]
Wise Results, LLC
BACKGROUND
Training requirements have become quite numerous in recent decades. Federal and state laws now require a daunting array of campus training on topics ranging from institutional review boards to sexual harassment. The latest exemplar of this trend is the Department of Education’s Dear Colleague Letter on sexual harassment and sexual violence issued on April 4, 2011 (“DCL”).
As our companion outline notes, the DCL strongly advises institutions to provide extensive training on sexual assault prevention and response. On page 4, the DCL recommends training for those who may witness a sexual assault or receive a report about an assault. The letter offers these examples:
❖ Administrators
❖ Campus law enforcement personnel
❖ Counselors
❖ Faculty
❖ General counsel
❖ Health personnel
❖ Resident advisors
At other points the DCL describes groups meriting special training efforts. These overlap with the list above:
❖ Title IX coordinator (p. 7)
❖ “All” campus law enforcement personnel (p. 7)
❖ Grievance personnel, including investigators and adjudicators (p. 12)
❖ Coaches (p. 14)
❖ Residence hall advisors (p. 14)
❖ “All staff who interact with students regularly” (p. 17)
In addition, OCR recommends the inclusion of sexual assault prevention training in orientation for new students, faculty, and staff.
WHERE TO START
Institutions seeking to comply with the DCL training requirements face the major task of developing and delivering sexual harassment and sexual violence information and resources to many different audiences. Training will need to be repeated periodically. Bear in mind that training may take many forms. These include:
• A live, on-campus session devoted entirely to sexual harassment and sexual violence
• A portion of a live, on-campus session covering various topics
• A web-based program
• Reading material, online or on paper, perhaps with a certificate that the recipient has reviewed it
• Attendance at an outside conference or training program
• A timely special briefing, such as just before a disciplinary board hears a sexual violence case
• Skits, films, and similar creative approaches
Among the challenges is the development of appropriate training tools on sexual violence. It is unnecessary, however, to start from scratch. Many free and low-cost resources already exist. They range from ready-made handouts to complete training programs. Below is a survey of some available resources, arranged in alphabetical order. It is preceded by a chart suggesting groups for which particular items might be suitable. The resource list does not purport to be complete and the pairing of resources and groups is, at best, inexact.
Review the resources to see whether they might meet your institution’s needs and, as appropriate, secure permission from the authors for use.
|Campus Group |Start With These Resources… |
|Administrators |Principles of Prevention |
| |Sexual Violence: What Everyone Should Know |
| |Shifting the Paradigm: Primary Prevention of Sexual Violence |
| |The Undetected Rapist |
|Coaches |Engaging Bystanders in Sexual Violence Prevention |
| |Principles of Prevention |
| |Step Up! (for athletes, among others) |
| |The Undetected Rapist |
| |Working with Men and Boys to Prevent Gender-Based Violence |
|Counselors |Engaging Bystanders in Sexual Violence Prevention (see comment) |
| |Intake and Outcome-Based Forms |
| |SART Toolkit |
| |Sexual Assault Advocate/Counselor Training |
| |Sexual Assault and Intimate Partner Violence |
| |Sexual Assault on College Campuses |
| |Silence Hurts |
| |Victim’s Initial Contact Guide |
|Faculty |It Won’t Happen to Me |
| |Sexual Assault on College Campuses |
| |Sexual Violence: What Everyone Should Know |
| |The Undetected Rapist |
|General counsel |Judges Tell |
| |Minimum Standards of Training for Campus Security Personnel and Campus Disciplinary and |
| |Judicial Boards |
| |Sexual Assault and Intimate Partner Violence |
| |Sexual Assault on College Campuses |
| |Victim’s Initial Contact Guide |
|Grievance and disciplinary board investigators |Judges Tell |
|and adjudicators |Sexual Assault and Intimate Partner Violence |
| |Victim’s Initial Contact Guide |
|Health personnel |Intake and Outcome-Based Forms |
| |Sexual Assault and Intimate Partner Violence |
| |Silence Hurts |
|Law enforcement personnel |Law enforcement sexual assault response tools |
| |SART Toolkit |
| |The Undetected Rapist |
| |Victim’s Initial Contact Guide |
|Resident advisors |Online RA Training Module on Sexual Misconduct and Assault |
| |Engaging Bystanders in Sexual Violence Prevention |
| |Sexual Violence: What Everyone Should Know |
|Staff who “interact with students regularly” |Engaging Bystanders in Sexual Violence Prevention |
| |It Won’t Happen to Me |
| |The Undetected Rapist |
|Students |20:1 |
| |It Won’t Happen to Me |
| |Sexual Violence: What Everyone Should Know |
| |Step Up! |
| |The Undetected Rapist |
| |Working with Men and Boys to Prevent Gender-Based Violence |
| |Handouts from Shifting the Paradigm: Primary Prevention of Sexual Violence |
|Title IX coordinators |Principles of Prevention |
| |Sexual Assault and Intimate Partner Violence |
| |Shifting the Paradigm: Primary Prevention of Sexual Violence |
| |Victim’s Initial Contact Guide |
|Training coordinators |Intake and Outcome-Based Forms |
| |Minimum Standards of Training for Campus Security Personnel and Campus Disciplinary and |
| |Judicial Boards |
| |Training Professionals in the Primary Prevention of Sexual and Intimate Partner Violence |
FREE AND LOW-COST RESOURCES
20:1, an in-person peer-education program for college students
Source: Binghamton University, SUNY
Where: www2.binghamton.edu/counseling/services/sexual-assault-peer-education
Comments: The program has good handouts on topics including rape myths, sex offender stereotypes, and statistics on campus sexual assault.
Engaging Bystanders in Sexual Violence Prevention
Source: New England Adolescent Research Institute
Where:
Comments: Free online course, takes about 30 minutes. Requires registration. Also can be downloaded as a 56-page booklet. Could be useful for, among others, student affairs staff and student peer educators. NEARI has another free course on protecting children in congregations and some low-cost courses (about $45) for counselors.
Intake and Outcome-Based Forms (poorly titled set of forms)
Source: U.S. Department of Justice Office of Justice Programs
Where:
Comments: Diverse set of forms includes, among others, pre- and post-training quizzes on sexual assault, evaluation form for educational programs, and clinical intake forms for assault victims.
It Won’t Happen to Me
Source: Federal Substance Abuse & Mental Health Administration (SAMSHA)
Where:
Comments: Free online course on alcohol abuse & violence against women. Eleven brief modules on topics such as preventing sexual assault and what to do after an assault. Many of the modules are also condensed into “fact sheets.” Could be used with some staff or students, with caveat that not all sexual assault is male-on-female.
Judges Tell: What I Wish I Had Known Before I Presided Over an Adult Victim Sexual Assault Case
Source: National Judicial Education Program
Where: our-work/vaw/njep-reports-and-resources/judges-tell.pdf
Comments: Useful as a model for training disciplinary hearing panel member. One university has already adapted “Judges Tell” for this purpose.
Law enforcement sexual assault response tools
Source: U.S. Department of Justice Office of Justice Programs
Where:
Comments: Free materials in Word documents include pocket guide for police response to sexual assault and an evaluation form for victim to assess police assistance.
Minimum Standards of Training for Campus Security Personnel and Campus Disciplinary and Judicial Boards
Source: U.S. Department of Justice Office of Violence Against Women
Where: ovw.docs/campustrainingstandards-le.pdf
Comments: Five-page set of suggestions for training campus security and campus disciplinary boards on sexual assault. Focus is on topics to address in training.
Online RA Training Module on Sexual Misconduct and Assault
Source: West Virginia Foundation for Rape Information and Services, in partnership with the
West Virginia Intercollegiate Council on Sexual Violence. Funding from the National Institute of Justice, U.S. Department of Justice.
Where: Resources/RATrainingModule.html
Comments: This 45-minute online module provides a solid foundation for resident assistants and resident advisors on the issue of campus sexual assault. It covers, among other topics, common patterns of campus assault, the role of alcohol, stalking, and techniques for supporting an assault victim. It concludes with 12 true/false quiz questions on key points and provides a printable certificate with the user’s name and quiz score. A 19-page user’s guide accompanies the module and includes some well-designed group activities that can supplement the on-line materials. The online program must be completed in one sitting and does not show how much of the module the user has viewed. The program could also be used with volunteers or other adult audiences. Free, no registration required.
Principles of Prevention
Source: Centers for Disease Control
Where: ViolencePrevention/POP.html
Comments: Free online course lasting about 75-90 minutes. “Designed for those working to stop violence from ever happening.” Covers violence prevention in areas including intimate partner violence, child abuse, and suicide.
SART Toolkit
Source: U.S. Department of Justice Office of Justice Programs
Where:
Comments: Sexual Assault Response Teams can find resources here on establishing and operating a cross-functional team.
Sexual Assault Advocate/Counselor Training
Source: Office for Victims of Crime Training and Technical Assistance Center, U.S. Department of Justice
Where: views/TrainingMaterials/dspSexualAssaultTraining.cfm
Comments: Two-day workshop on crisis intervention that deepens knowledge of sexual assault. Designed primarily for counselors and advocates, particularly rape crisis center staff. Through 2011, the workshop was held on various dates at locations around the country. Beginning in 2012, the program is offered on request. A request should be submitted 6 months in advance and the requestor should expect an audience of at least 30 people. (A request could be made by, e.g., a single university, a consortium of universities, or a mixed group of educational and social service organizations.) The Justice Department will provide, without charge, a facilitator who is a subject-matter expert, participant manuals, and other support. The requestor supplies items including meeting space and a-v equipment. CEU’s can be provided. For further information, contact Aisha Johnson at 703-225-2236 or training@.
Sexual Assault and Intimate Partner Violence
Source: U.S. Department of Justice Office of Justice Programs
Where:
Comments: Two-page brochure of Q&A with a focus on health care. Questions include: do you think you were drugged and will health care providers report to police? Could easily be adapted for campus use with victims or for general distribution.
Sexual Assault on College Campuses
Source: National Institute of Justice, U.S. Department of Justice, and Government Innovators Network at Harvard University
Where: innovations.harvard.edu/xchat-transcript.html?chid=281
Comments: Recording, slides, and resources from a two-hour program presented on December 11, 2008. Researchers Davis Lisak (University of Massachusetts), Dorothy Edwards (University of Kentucky), and Chris Krebs (RTI International) discuss: serial rapists among college men; college sexual assault survey results; and bystander intervention programs. Data and some portions of recording could be useful for faculty or other advanced audiences. Free, registration required.
Sexual Violence: What Everyone Should Know
Source: American College Health Association
Where: Order in bulk from
Comments: Haven’t seen the text but ACHA produces excellent materials.
Shifting the Paradigm: Primary Prevention of Sexual Violence
Source: American College Health Association
Where:
Comments: Twenty-four page booklet with recommended steps for institutions and very good handouts for students. Published in 2008 and designed as a toolkit.
Silence Hurts
Source: Federal Substance Abuse & Mental Health Administration (SAMSHA)
Where:
Comments: Free online course on alcohol abuse & violence against women. Nine brief modules on topics including early intervention, screening, assessment, and treatment. Continuing education units available in some states.
Step Up!
Source: University of Arizona and NCAA; facilitator training available through National Sexual Violence Resource Center
Where:
Comments: Scenario-based in-person training program lasting about 3 hours. Developed in collaboration with NCAA and geared to student athletes, Greek life, and others. The focus is on by-stander intervention in sexual assault and other problematic situations. Train-the-trainer webinars and seminars available. Next seminar program is May 17-18, 2012, in Tucson.
The Undetected Rapist
Source: Legal Momentum and the National Judicial Education Program
Where: Order from our-work/vaw/njep-resources-sexual-assault-the-undetected-rapist.html
Comments: Compelling 6-minute reenactment of an interview with a male college student who candidly discusses his steps in “grooming” a female student, inviting her to a party, getting her drunk, and sexually assaulting her. For use with companion facilitator’s guide. Available in DVD or VHS, $15. A second, training-focused film, The Response to the Undetected Rapist, is also available for $15. In addition, NJEP has an extensive, free online course primarily for judges titled Intimate Partner Sexual Abuse: Adjudicating This Hidden Dimension of Domestic Violence Cases. Registration is required.
Training Professionals in the Primary Prevention of Sexual and Intimate Partner Violence
Source: Centers for Disease Control
Where:
Comments: Good 86-page guide with ideas for developing sexual assault prevention training. Has a short appendix for programs in K-12 and higher education. Published in 2010.
Victim’s Initial Contact Guide
Source: U.S. Department of Justice Office of Justice Programs
Where:
Comments: Checklist to gauge whether victim has been given information on safety, medical exams, and reporting options.
Working with Men and Boys to Prevent Gender-Based Violence
Source: Family Violence Prevention Fund
Where:
Comments: Supported by U.S. Department of Justice and the Centers for Disease Control. Offers a “toolkit” including lesson plans, readings, and exercises. Free, registration required.
APPENDIX B
Free and Low-Cost Training Resources
on Child Sexual Abuse
Suitable for Use in Colleges and Universities
Prepared for the National Association
of College and University Attorneys
Ann H. Franke[44]
Wise Results, LLC
January, 2012
This bibliography suggests some free and low-cost training materials that institutions of higher education may wish to use or adapt to educate faculty, staff, students, and volunteers about child molestation. The bibliography does not purport to be comprehensive, and the author welcomes suggestions of other resources. Many other training products are available commercially and through religious and social service groups.
Note that the last item covers state mandatory reporting requirements. The details of your state law on reporting child abuse would be an important element of campus training.
Be sure to review closely the contents of any resource you may wish to use, as not all the materials have been thoroughly pre-screened.
General Guides
Preventing Child Sexual Abuse Within Youth-Serving Organizations (2007)
Division of Violence Prevention, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services. Excellent 48-page guide, with chapters on prevention, overcoming challenges, developing processes, and implementing training. Discusses six components of prevention: (i) screening employees and volunteers; (ii) developing guidelines for behavior; (iii) monitoring behavior; (iv) creating safe environments; (v) responding to inappropriate behavior, policy violations, and suspicions of abuse; and (vi) training on child sexual abuse prevention. Includes a very good planning checklist (p. 35). Full text available at violenceprevention/pub/preventingchildabuse.html. Up to 50 hard copies may be ordered, without charge, from National Center for Injury Prevention. wwwn.pubs/ncipc.aspx
Child Sexual Abuse Prevention: Programs for Adults (2011)
National Sexual Violence Resource Center, under contract with the Centers for Disease Control. Overview of prevention programs and evaluation of program effectiveness. Designed to assist prevention educators and advocates in developing programs on child molestation. Contents may be reprinted with acknowledgement. Full text available at sites/default/files/Publications_NSVRC_Guide_Child-Sexual-Abuse-Prevention-programs-for-adults.pdf.
Ready-To-Use Handouts
Educators’ Checklist for Recognizing Possible Child Maltreatment (2003)
Administration for Children and Families, U.S. Department of Health and Human Services. Covers sexual abuse and other types of neglect and abuse. The checklist is Appendix D to a K-12 guidebook titled “The Role of Educators in Preventing and Responding to Child Abuse and Neglect.” pubs/usermanuals/educator/index.cfm
Protect Your Children: Advice from Child Molesters.
Good overview of non-stranger molestation, characteristics of molesters, and how molesters gain trust and groom victims. Written mainly in first person, e.g., “I can be anybody.” “My education and intelligence do not prevent me from molesting your child.”
Tip Sheets
These short fact sheets may be downloaded for free or purchased in bulk from the group Stop It Now! Useful as handouts for a basic training program. Available through a creative commons license. warnings.
• Warning Signs in Children and Adolescents of Possible Child Sexual Abuse
• Age-Appropriate Sexual Behavior
• Behaviors to Watch for When Adults Are With Children
• Signs That an Adult May Be At-Risk to Harm a Child
• Signs That a Child or Teen May Be At-Risk to Harm Another Child
• What is Considered Child Sexual Abuse?
Prevention Tip Sheets
Handouts on many topics, also from Stop It Now! Selections of potential use in higher education training settings include those listed below. prevention_tools .
• A Summer of Happy Memories: Camp Safety
• Twelve Questions About Your Behavior Only You Can Answer
• Sexual Safety in Sports: Talking about Coaches Who Show Inappropriate Interest in Kids
• Sample Journal Entry
• The Four R's of Prevention
• Talking to Children and Teens
• Child Sexual Abuse Prevention for Faith Communities
• Nine Questions Parents Need to Ask When Selecting a Program for their Child
• Safety In Daycare/Educational Settings
• Keeping Adults and Children Safe on the Internet
Grooming Behaviors, Knowledge Quiz, and other items
University of Pittsburgh, Pennsylvania Child Welfare Training Program. Geared to child welfare professionals and to Pennsylvania law, with focus on abuse within families. Some handouts suitable for a wider audience. See also related program of training for child welfare supervisors. pacwcbt.pitt.edu/Curriculum/203%20Overview%20Child%20Sexual%20Abuse.html
On-Line Tutorials, Webinars, and Live Seminars
“Awareness to Action: What Adults Can Do to Prevent Child Sexual Abuse”
The group Stop It Now! offers free webinars and webinar recordings. Awareness to Action is an introductory program that will be repeated in February 2012. Other programs address research topics and advanced abuse prevention training. training#awareness.
“Stewards of Children”
The group Darkness to Light () has developed this training program for adults. The on-line version takes about 2.5 hours and costs $10 per user. A separate administrative tracking tool is available to organizations that wish to monitor staff and volunteer completion of the on-line training. In-person workshops, led by authorized facilitators, are held around the country or may be specially scheduled. Train-the-trainer sessions for facilitators are also available. .
Your State Law on Reporting Child Abuse
Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws (April 2010). Children's Bureau, Administration on Children, Youth and Families, U.S. Department of Health and Human Services. Fifty-five page guide compiling state laws on mandatory reporting of child abuse. According to the report, 18 states require reporting by any person (not just, e.g., teachers or physicians) who suspects child abuse or neglect. Since guide is current as of April 2010, check your state law for subsequent amendments. Full text can be downloaded.
systemwide/laws_policies/statutes/manda.pdf
[pic]
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[1] The author may be reached at annfranke@. She welcomes comments, suggestions, corrections, and other feedback. The original version of this paper was prepared for the June 2010 annual conference of the National Association of College and University Attorneys for a panel titled "Getting on the Same Page: Educating Our Clients."
[2] Mathiason, Garry G., and Mark A. de Bernardo, “The Emerging Law of Training,” The Federal Lawyer, May 1998, pp. 25-37. This important article canvassed areas in which training was then directly or implicitly required by federal or state law. It covered, among other topics: OSHA, the Federal Drug-Free Workplace Act, workers’ compensation laws, employee selection procedures, and, in some states, sexual harassment.
[3] The first references to training in the NACUA Legal Reference Service dates to 1998. NACUA’s Clearinghouse of Training Materials for the Practice of Preventive Law in Higher Education began in 2006-07.
[4] Tina Gunsalus offers a somewhat different perspective in her advice to campus administrators. “You can learn a great deal about how to be an effective leader by reading books on effective parenting…. If you’re not a parent and prefer not to read about being one, the dog training literature is also a good place to learn the skills you’ll need. No, no, I’m not suggesting you treat your colleagues and subordinates like children or dogs. The reason to read books about good parenting or dog training is that they teach you how to modify your behavior and to build effective communication skills. They suggest practical ways to improve your listening and to ensure that your words and actions send a consistent – rather than mixed – message.” C.K. Gunsalus, The College Administrator’s Survival Guide (Harvard University Press, 2006), p. 71.
[5] Littler, Mendelson, “Training Really Is the Law: The Rise of Mandatory Training” (2009). documents/the-law-of-training.pdf
[6] For an excellent summary of state requirements, visit the ELT website at
our-solutions/harassment/50-state-training-requirements.
[7] Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 6/18/99, policy/docs/harassment.html
[8] The letter may be found at www2.about/offices/list/ocr/letters/colleague-201104.html.
[9] “Many standards promulgated by the Occupational Safety and Health Administration (OSHA) explicitly require the employer to train employees in the safety and health aspects of their jobs. Other OSHA standards make it the employer's responsibility to limit certain job assignments to employees who are "certified," "competent," or "qualified" - meaning that they have had special previous training, in or out of the workplace. The term "designated" personnel means selected or assigned by the employer or the employer's representative as being qualified to perform specific duties. These requirements reflect OSHA's belief that training is an essential part of every employer's safety and health program for protecting workers from injuries and illnesses.” Training Requirements in OSHA Standards and Training Guidelines, Publications/2254.html
[10] Training Requirements in OSHA Standards and Training Guidelines, Publications/2254.html
[11] FAR § 3.1002 states:
(a) Government contractors must conduct themselves with the highest degree of integrity and honesty.
(b) Contractors should have a written code of business ethics and conduct. To promote compliance with such code of business ethics and conduct, contractors should have an employee business ethics and compliance training program and an internal control system that—
(1) Are suitable to the size of the company and extent of its involvement in Government contracting;
(2) Facilitate timely discovery and disclosure of improper conduct in connection with Government contracts; and
(3) Ensure corrective measures are promptly instituted and carried out. (Emphasis added.)
See 72 Fed. Reg. 65873 (11/23/07);
[12] The Federal Sentencing Guidelines provide: “(4) (A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subdivision (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities. (B) The individuals referred to in subdivision (A) are the members of the governing authority, high-level personnel, substantial authority personnel, the organization’s employees, and, as appropriate, the organization’s agents.” United States Sentencing Commission, Guidelines Manual, § 8 B 2.1(b)(4) (2011). guidelines/2011_Guidelines/Manual_HTML/8b2_1.htm
[13] John R. Steer, “Changing Organizational Behavior—The Federal Sentencing Guidelines Experiment Begins to Bear Fruit” (presented at the Twenty-Ninth Annual Conference on Value Inquiry, Tulsa, Oklahoma (Apr. 26,
2001)), pp. 8-9, 13. Guidelines/Organizational_Guidelines/Selected_Articles/corpbehavior2.pdf.
[14] The government cites section 289 of the Public Health Act as authority for the requirement. 42 U.S.C. 289. See “Compliance Oversight Procedures for Evaluating Institutions,” Office for Human Research Protections, Oct. 14, 2009. ohrp/compliance/ohrpcomp.pdf . See also Department of Health and Human Services, Office for Human Research Protections, Institutional Review Board Guidebook. “Other Institutional Personnel. Training new personnel is a basic responsibility of any institution. In facilities that conduct research, all personnel should be aware of the applicable institutional policies and mechanisms for the approval of research and for reporting problems with research projects in progress. Personnel involved in the conduct of research should receive additional training in institutional expectations and specific regulations pertaining to research. Training designed to enhance the development of high quality proposals should be encouraged. IRB members and others charged with responsibility for reviewing and approving research should receive detailed training in the regulations, guidelines, and policies applicable to human subjects research. Attending workshops and other educational opportunities focused on IRB functions should be encouraged and supported to the extent possible. Training in good research practices and in methods for minimizing risk should be provided. Since research conducted by others may have a bearing on research projects conducted by or at the institution, journals and other research-related materials should be available to staff.” ohrp/archive/irb/irb_guidebook.htm.
[15] OHRP's Division of Education and Development has produced training materials including videos, webinars, and brochures. ohrp/education/index.html.
[16] ohrp/policy/investigatorfaqsmar2010.pdf
[17] 42 U.S.C. 1862o-1
[18] 74 Fed. Reg. 42126 (8/20/09).
[19] See Groll, Elias and William White, “Harvard to Institute Research Ethics Training,” The Harvard Crimson, April 9, 2010. Explains that the university must train all researchers, including undergraduates, who work on NIH or NSF grants and that the university had purchased a subscription to on-line training. thecrimson.harvard.edu/article/2010/4/9/research-ethics-training-school/
[20] The recommended subjects are: conflict of interest; responsible authorship; policies for handling misconduct; data management; and policies for handling human and animal subjects. “Reminder And Update: Requirement for Instruction in the Responsible Conduct of Research in National Research Service Award Institutional Training Grants,” NIH GUIDE, Volume 21, Number 43, November 27, 1992. . See webguru.neu.edu/professionalism/integrity/ethics-training.
[21] Section 51.9361 of the Texas Education Code.
[22] See, e.g., the District of Columbia, which provides free online training for mandatory reporters. . California law strongly encourages training for mandatory reporters. California Penal Code section 1165.7(B). Training for California's mandatory reporters is available at .
[23] Section 51.976 of the Texas Education Code.
[24] “University Of Louisiana At Monroe To Pay $450,000 To Settle EEOC Age Discrimination And Retaliation Suit,” April 20, 2010. eeoc/newsroom/release/4-20-10a.cfm
[25] "Chapman University Settles EEOC Sex Discrimination Case for $175,000: Female Film Department Professor Denied Promotion Because of Gender, Federal Agency Charged," June 6, 2012. eeoc/newsroom/release/6-6-12b.cfm
[26] “Lafayette College Agrees To Pay $1 Million To Settle EEOC Sexual Harassment Suit,” EEOC News Release, April 23, 2010. eeoc/newsroom/release/4-23-10.cfm
[27] “Benedict College Settles EEOC Racial Bias Case,” April 8, 2009. eeoc/newsroom/release/4-8-09c.cfm
[28] “Justice Department Settles Employment Discrimination Suit Against John Jay College,” May 19, 2010. opa/pr/2010/May/10-crt-591.html
[29] “EEOC Settles English-only Suit for $2.44 Million against University of Incarnate Word,” April 20, 2001. eeoc/newsroom/release/4-20-01.cfm
[30] The United States Department of Justice required the Utah College of Massage Therapy in 2007 to conduct training on ADA requirements. The settlement agreement provided, in relevant part: “Within 120 days of the execution of this Agreement, UCMT will provide mandatory training by qualified trainers to the ADA coordinators for each Campus, and to other employees involved in enrollment, on the requirements of the ADA. The training materials shall be provided to the United States for its approval at least 30 days prior to each annual training session.” opa/pr/2007/July/07_crt_491.html Similarly, the “OCR Annual Report to Congress 2001 - 2002,” describes the settlement of a disability charge involving a student who used a wheelchair who sought to take a weight-training course. The college agreed to train its weight-room staff on accommodation obligations. www2.about/offices/list/ocr/AnnRpt2002/edlite-2002arc-4.html. The FCC required Long Island University Public Radio Network to train its station staff on appropriate underwriting content, as distinguished from advertising, which is prohibited. In the Matter of Long Island University Public Radio Network, Consent Decree, EB-07-IH-5286, November 6, 2009. eb/Orders/2009/DA-09-2146A1.html
[31] “Attorney General Cuomo Announced Settlement with College Board to Help Students Secure Low-Cost Loans,” December 8, 2008. ag.media_center/2008/dec/dec8a_08.html
[32] Settlement Agreement and Release, 2008. press_releases/march/2008/TGAnnouncesDisabilitiesSettlementWithCollegeAgreement.pdf
[33] Office for Civil Rights, “Sexual Harassment Guidance” (1997). www2.about/offices/list/ocr/docs/sexhar01.html
[34] Schevitz, Tanya, “All 230,000 UC Employees Required to Take Ethics Course,” San Francisco Chronicle, January 14, 2007, page B1. cgi-bin/article.cgi?f=/c/a/2007/01/14/BAGRNNIHHB1.DTL
[35] “Professor Risks Job by Refusing to Be Trained in Preventing Sexual Harassment,” Chronicle of Higher Education, November 5, 2008. . Robbins, Gary, “Bitter Sex Ed Battle Ends at UC Irvine,” Orange County Register, March 23, 2009, .
[36] Gravois, John, “Illinois Questions Professors Ethics,” Chronicle of Higher Education, January 12, 2007, p. A26; Gravois, John, “Two Professors Sue Over Ethics Test,” Chronicle of Higher Education, February 16, 2007, p. A14; Foster, Andrea, “Professors and Illinois Settle Differences Over Ethics Test,” Chronicle of Higher Education, May 5, 2008, .
[37] Ricardo Meza v. Lou van den Dries, Executive Ethics Commission, State of Illinois, Case # 11-EEC-009, decision dated June 13, 2012.
[38] “Ethics Training Workshops Begin,” North Carolina A&T State University, The Aggie Report newsletter, 5/11/07
ncat.edu/~univrel/publications/copy/aggiereportmay11-07.pdf.
[39] As the “Report of the Ad Hoc Committee on The Organizational Sentencing Guidelines” explain: “The language presently used in the guidelines which refers to ‘requiring participation in training programs’ conjures up an image of very formal and possibly expensive training initiatives that small organizations might not be able to afford. By substituting the phrase ‘conducting effective training’ for ‘requiring participation in training programs,’ the Advisory Group sought to ensure that small organizations would not be overly burdened in meeting the training obligations specified in the proposed guideline. For such small entities, effective training could occur during orientation sessions, monthly staff meetings, or even casual conversations between a manager and her subordinates. The larger the organization, the more appropriate it maybe to have a more formal training program with appropriate documentation and dedicated resources and tools to measure the training program’s impact. The burden would thereby remain on the organization to explain what training occurred and why the organization considered it effective.” (October 23, 2003) at page 73.
[40] Consider, too, whether religious or other objections should be accommodated. See, e.g., Altman v. Minnesota Dept. of Corrections, 251 F.3d 1199 (8th Cir. 2001)(Three employees were disciplined for silently reading Bibles during diversity training, as a form of protest over content on homosexuality. Triable issue on how other inattentive employees were treated.)
[41] Cadena v. The Pacesetter Corp., 224F.2d 1203 (10th Cir. 2000)(“ [T]he manager responsible for sexual harassment training at the office where Cadena worked, testified that she discussed the topic of sexual harassment at meetings with her co-workers on a monthly basis. However, Richard Payne, another telemarketing manager at the Lenexa office, testified that no such monthly training sessions occurred. More significantly, Humphrey conceded that when she gave her deposition [pic]35EFik“”•¢£¤ÃÄÅÇÈÍÔÕÖçñùþ = > ‡ ˆ øïæàÚàÐàǾø°¦Ú š‘‹?w?‹qàgqgqàaUajh½[pic]y0JU[pic]aJtestimony, she believed that a male supervisor would not commit sexual harassment if he either exposed his genitalia to a female subordinate or grabbed her breasts, so long as he apologized after the incident.”)
[42] Report of the Ad Hoc Committee on The Organizational Sentencing Guidelines
October 23, 2003, Page 118. corp/advgrprpt/advgrprpt.htm
[43] Adapted from materials prepared for a NACUA conferences held on February 3, 2012.
[44][45] Ann Franke can be reached at annfranke@. Adapted from materials she prepared for a NACUA webinar held on January 20, 2012.
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