Case In Point: Lessons for the proactive manager

Volume 14 Number 06 | June 2022

Quotable .....

“Because things are the way they are, things will not stay the way they are.”

-- Bertolt Brecht

June 23, 2022, marked the 50th anniversary of the passage of Title IX which states, ''No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.'' (Education Amendments Act of 1972, 20 U.S.C. §1681 et seq. (2018)) I doubt anyone in 1972 realized the compliance journey that this legislation would launch over the next 50 years in higher education. The law was originally enacted to fill the gap in the Civil Rights Act of 1964 to include sex as a protected class category in education. Initially, the law was most frequently applied to sports program equity for many years impacting high school and collegiate athletics. However, court rulings in the 1980's and 90's made it clear that Title IX applied to sexual harrassment and assault as forms of sex discrimination. This greatly expanded what the law meant from how it was originally viewed.

In 2011, the often cited ''Dear Colleague'' letter issued by the Obama administration even further expanded universities' responsibilities to respond to reports of sexual harassment. Since that time Universities have found themselves in a precarious position as the sub-regulatory guidance has changed with various administrations.

As we know, the Trump administration in 2020 took regulatory action, notably adding protections for accused students. Now the pendulum is swinging back in the other direction reinstating many of the previous regulations.

On Title IX's 50th anniversary the Biden administration proposed new sub-regulatory guidance which will now be out for comment over the next few months. Following the period for comments and subsequent evaluation and changes, the final guidance will be issued. The proposed guidance will likely make a challenging area even more challenging for colleges and universities. According to an article in the Chronicle of Higher Education on June 23, 2022, the rule would:

Enshrine protections for sexual orientation and gender identity, as well as ''sex stereotypes, sex characteristics, [and] pregnancy or related conditions.''
Permit, but no longer require, live hearings and cross examination in Title IX investigations.
Expand the definition of sexual harassment.
Clarify the protections students, faculty, and staff have from retaliation by their institution.
Require colleges to confront off-campus conduct that ''creates or contributes to a hostile environment.''
Require certain campus employees to notify the Title IX office of possible sex discrimination, a return to broader mandatory-reporting requirements. If an incident involves students, anyone with ''teaching'' or ''advising'' responsibilities — in other words, most faculty members — must report it. Some professors have criticized mandatory reporting, saying it harms the trust they've built with their students.
Require all other faculty and staff members to provide students with the contact information of the campus Title IX coordinator, unless they're designated as confidential resources.

(Hidalgo Bellows, Kate. ''Here's How Title IX Could Change Under Biden's Proposed Rule.'' Chronicle of Higher Education, 23 June 2022).

Couple this major change in Title IX with the rapidly changing environment in college athletics (NIL, transfer portal, etc.) and increased expectations in research compliance, and higher education's compliance burden appears set to become even more challenging in the near future. That said, we will continue to do our best to keep you informed of major compliance events over the coming months.

Compliance risks are not going away, nor are many of the other risks you see on display here each month. We again invite you to review the events of the prior month with a view toward proactively managing risks at your institution. As always, we welcome your comments and suggestions.

M. Kevin Robinson, CIA, CFE
Associate Vice President
Office of Audit, Compliance & Privacy
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Information Security & Technology Events

Jun 20: Data Breach: Recently, Simpson University confirmed that the company experienced a data breach involving unauthorized access to employee email accounts. According to Simpson University, the breach resulted in the names, Social Security numbers, financial information (bank account, credit card, and debit card numbers), and protected health information of 6,175 students being compromised. On June 9, 2022, Simpson University filed official notice of the breach and sent out data breach letters to all affected parties. (link)

Jun 10: Data Breach Settlement: A University of Pittsburgh Medical Center billing support company agreed to pay $450,000 to resolve claims surrounding a 2020 data breach. The settlement benefits individuals whose information was accessed, stolen or compromised as a result of the 2021 data breach affecting the University of Pittsburgh Medical Center (UPMC). From April to June 2020, Charles J. Hilton PC (CJH) -- legal retainer hired by UPMC for billing-related services -- allegedly suffered from a data breach. This breach occurred when several CJH email accounts were accessed by a third party, the plaintiffs explain. (link)

Jun 10: Data Breach: The Texas Tech University Health Science Center has notified patients of a potential breach of information held by Eye Care Leaders, Inc. On April 19, ECL provided TTUHSC final results of the investigation into the security incident, confirming some of the databases and files contained patient records. No evidence could be found that such records were exfiltrated or used by unauthorized individuals. The ECL's information contained name, address, phone numbers, driver's license number, email, date of birth, medical record number, health insurance information, social security number. (link)

Jun 10: Data Breach: The University of California, Los Angeles, law school accidentally released to first-year students information about rising third-year students, including their grade point averages and success in landing jobs, Law.com reported. The data included students' names. UCLA intended to share the information without names. UCLA released this statement: "Our career services staff recently shared information with our rising 2L students to help them prepare for interviews. Unfortunately, this information included a spreadsheet that contained hidden tabs that should have been removed. Those tabs contained some rising 3L students' 1L GPAs, along with firms from whom they had callbacks or offers." (link)

Jun 01: Ransomware: Martin University today announced that it, like many other colleges and universities across the nation, experienced a recent ransomware attack. The university learned of the suspicious activity on January 3, 2022. It immediately hired security experts and a computer forensic investigator to analyze the system, ensure its safety, and determine whether the incident impacted anyone's personal information. (link)

Fraud & Ethics Related Events

Jun 11: Occupational Fraud: A former dean at East Los Angeles College in Monterey Park pleaded no contest in a criminal case in which he was charged with overbilling the school by more than $1,500 for trips he took. The man was sentenced to two years probation and ordered to pay $1,580 in restitution as a result of his plea on Friday to a felony count of grand theft by an employee, attorneys said. (link)

Jun 02: Occupational Fraud: The former track and field coach at Austin Peay State University has pleaded guilty to attempted theft and agreed to repay the university $30,600 in misappropriated money. "The vast majority of the misappropriated money was collected and turned over to the coach during track and cross country fundraiser events hosted between 2015 and 2018," the release said. "These fundraisers included several athletic events in which participants were charged entry fees. At least $29,775 that was collected during these events should have been deposited into a APSU bank account; however, investigators discovered that the coach retained this money for his personal benefit." (link)

Compliance/Regulatory & Legal Events

Jun 28: Title IX Lawsuit: A student at New York City's Yeshiva University filed a federal lawsuit against the school and some of its leadership on Monday, claiming the university covered up her rape by a student athlete and mishandled the investigation of the case. The lawsuit claims the modern Orthodox university conducted a "sham investigation" into the case to shield a major fundraising campaign, and alleges the effort was part of a long pattern of covering up sexual assault. (link)

Jun 27: Title IX Investigation: State lawmakers ordered an independent investigation Monday of how sexual harassment and retaliation complaints are handled by California State University, which has been shaken by scandals that have sparked public outcry and led to the resignations of top system officials. The investigation will be conducted by the state auditor and focus on the chancellor's office and three campuses, but the review could expand depending on what is uncovered. (link)

Jun 27: Title IX: The Biden Administration's Department of Education issued a new Notice of Proposed Rulemaking (NPRM) on June 23, 2022 -- the 50th anniversary of the day Title IX was signed into law -- intended to overhaul the Trump Administration's May 2020 Title IX regulations. A Department-prepared Fact Sheet and Chart summarize the proposed regulations. The May 2020 regulations narrowed the definition of "hostile environment sexual harassment" and required schools to focus their Title IX procedures on on-campus or program-related conduct that fit within that definition. The proposed regulations in the NPRM, however, roll back that narrowing and essentially restore the definition to that used during the Obama Administration, which is more likely to require investigations of a broader category of unwelcome conduct of a sexual nature. (link)

Jun 27: Sexual Assault: The head tennis coach at Palm Beach Atlantic University is out of a job after his arrest earlier this month on felony charges. PBAU spokesman John Sizemore said Monday that the coach is "no longer employed by the university." A Pasco County Sheriff's Office report revealed that the man entered the woman's home through an unlocked back sliding door about 3 a.m. June 4 and sexually assaulted her. (link)

Jun 24: NCAA Violations: A former men's basketball volunteer assistant coach committed academic misconduct when he completed an online exam for a men's basketball student-athlete, according to an agreement released by the Division II Committee on Infractions. As a result, that student-athlete competed while ineligible. The NCAA enforcement staff, the university and the former volunteer assistant coach agreed that the coach knowingly committed academic misconduct when he connected an HDMI cable to a student-athlete's computer and completed an online exam on the student-athlete's behalf from another room. (link)

Jun 23: Title IX: This June marks the 50th anniversary of Title IX being passed into American law and helping create gender equality in sport. Before Title IX, women were overlooked in sports and were not nearly as supported as male athletes were. Title IX aimed to change this narrative and states that no one in the United States will be excluded from programs or denied the proper benefits for programs "on the basis of sex." (link)

Jun 23: Drug Trafficking: A former Cameron University Police Officer is expected in court soon, but on charges of trafficking drugs. The 63 year-old was arrested by Lawton Police on Monday, after he made an improper turn shortly after he left a known drug house. As far as his career with Cameron University, he was placed on administrative leave after the arrest, and has since resigned. (link)

Jun 23: Negligence Lawsuit: The parents of a Bowling Green State University student who died during a fraternity hazing incident have filed a lawsuit accusing the school of being negligent and asking a court to hold them responsible. According to the complaint, last March, 20-year-old Stone Foltz drank a liter of whiskey after a pledging event held by Pi Kappa Alpha Fraternity. His roommate later found him unconscious. He spent three days in a coma and later died of alcohol poisoning. (link)

Jun 23: Emotional Distress Lawsuit: A Connecticut woman who says she's descended from slaves who are portrayed in widely published, historical photos owned by Harvard University can sue the school for emotional distress, Massachusetts' highest court ruled Thursday. The state's Supreme Judicial Court partly vacated a lower court ruling that dismissed a complaint from Tamara Lanier over photos she says depict her enslaved ancestors. The images are considered some of the earliest that show enslaved people in the U.S. (link)

Jun 21: Title IX Lawsuit: The Ringing College of Art and Design is being sued by eight former students who charge the school mishandled reports of sexual assaults, violence and stalking, court records show. The suit, filed Tuesday in Sarasota County Court, also claims the former dean of students, targeted disabled and LGBTQ students for harassment. "Ringling breached its duty to protect its student population by providing a safe campus environment," the suit states. "Ringling has engaged in a pattern and practice of silencing students and covering up reports of student-on-student misconduct and violations of Florida and federal anti-discrimination laws since 2008." (link)

Jun 21: Misconduct: An off-duty University of Illinois police officer has been charged with official misconduct. The man is accused of displaying his badge and gun to a group of people in Campustown while drunk. A Champaign police report stated a woman told police that about 2:45 a.m. Sunday, she was with a group of people in a parking lot in the 0-100 block of East Green Street when the man came up to them, identified himself as a UI police officer and showed his badge and weapon. (link)

Jun 21: Admissions Policies Lawsuit: A federal appeals court has revived a lawsuit challenging the University of Texas at Austin's race-conscious admissions policies by a group whose case over similar practices at Harvard University is now before the U.S. Supreme Court. The 5th U.S. Circuit Court of Appeals on Monday ruled that Students for Fair Admissions was not barred from suing UT after the Supreme Court ruled in the school's favor in another case challenging its admissions policies in 2016. The lawsuit alleges the university, which has about 40,000 undergraduate students, improperly considers race in admissions and discriminates against white applicants in violation of the U.S. Constitution and Title VI of the Civil Rights Act of 1964. (link)

Jun 15: Title IX/Pregnancy Discrimination: The U.S. Department of Education's Office for Civil Rights (OCR) has determined that Salt Lake Community College (SLCC) violated both Title IX of the Education Amendments of 1972 and Section 504 of the Rehabilitation Act of 1973. The decision came after a student at SLCC had accused the school of pregnancy discrimination. According to the U.S. Department of Education, SLCC encouraged a pregnant student to drop a course because she was pregnant. The OCR found that the school did not attempt to provide the student with academic adjustments or necessary services during her pregnancy. Furthermore, the OCR found that SLCC did not exempt pregnancy-related absences or work that was completed late due to those absences. (link)

Jun 13: Title IX Lawsuit: A UC Berkeley alumnus has filed a lawsuit against the University of California, alleging that the university violated Title IX due process statutes. The alumnus, who chose to remain anonymous in the pleading, was dismissed from the university in June 2021 due to allegations of nonconsensual sexual intercourse. This decision was reimposed in February this year following an appeal hearing, according to the pleading. (link)

Jun 09: Arrest: A Hartnell College instructor has been arrested and charged with trying to arrange a meeting with a minor. The allegation is the meetup was for the purpose of having sex with the minor. The man was booked into the Santa Cruz County jail on one felony charge of penal code 288.4(B). That code is defined as the intent to arrange a meeting with a minor under the age of 18 with the intent to engage in sexual conduct at the meeting. (link)

Jun 09: Religious Discrimination: A former health professor at Springfield Technical Community College is suing the school after she was fired for refusing the COVID-19 vaccine on religious grounds. Sheryl Fullen, of Wales, filed a $50,000 lawsuit in Hampden Superior Court on Monday after bucking the statewide vaccine mandate community colleges installed in September. The complaint alleges religious discrimination, multiple civil rights violations and names the college and human resources director. The lawsuit says Fullen pursued a religious exemption based on her strongly held Christian beliefs against abortion. (link)

Jun 08: Sexual, Physical Abuse: The former head coach of the University of South Alabama (USA) women's volleyball team has been hit with sexual harassment allegations and other serious charges. Another victim has accused the coach of physical and psychological abuse, bringing the total number of accusers to nine. Rachael DeMarcus and Alexis Silver are former athletes who filed a similar lawsuit last August against the coach. It was later amended to include six other USA alumni. (link)

Jun 07: Child Pornography: An assistant professor at Auburn University's College of Veterinary Medicine was arrested by Auburn police on Thursday and charged with possession of child pornography. Police arrested the man on felony warrants charging him with five counts of possession of child pornography, according to the police report from Auburn Police Department. According to the press release, Auburn police and members of the Alabama Internet Crimes Against Children task force began an investigation on March 24. (link)

Jun 06: Child Pornography Sentence: Almost three years after his arrest for sex crimes, the former Franklin College president received a sentence of six years in prison and six years of extended supervision late Monday afternoon. He originally received 15 charges, including 12 counts for possession of child pornography, using a computer to facilitate a sex crime, child enticement, and exposing a child to harmful narrations. In March 2022, he pleaded no contest to four of the charges. (link)

Jun 06: Presidential Resignation: The Sonoma State President, who faced an outcry over her leadership amid a campus sexual harassment and retaliation scandal involving her and her husband, announced Monday that she is stepping down. The announcement marks the latest fallout from searing criticism over how California State University investigates and resolves sexual harassment and workforce retaliation complaints at its 23 campuses -- a controversy that has shaken CSU's leadership ranks and led its chancellor to step down in February. (link)

Jun 06: Defamation Lawsuit: The PhD candidate at the University of Arkansas at Little Rock who accused his advisor of unethical practices is now being sued for defamation. In April, KATV aired a two-part story covering the research misconduct and racial discrimination allegations made against the university and some of its faculty, staff, and administrators. In the first part that aired, PhD student, Matthew Kusper, said he was being asked by his advisor to omit data to manipulate the outcome of his research. When he filed complaints, he said he was retaliated against. (link)

Jun 03: Breach of Contract Lawsuit: The former president of South Carolina State University is suing officials with the school for salary he says he's owed from his time leading the school. The lawsuit, filed this week by Dr. James Clark's attorneys, is against the school's Board of Trustees and several other officials tied to the school. It seeks $570,000 in compensatory damages and $1.2 million in punitive damages. Clark led the school from 2016 until he was terminated in July of 2021. In the suit, he said he is owed a salary supplement held in an account by the Board's foundation. (link)

Jun 03: Murder Charge: An Idaho State University assistant football coach has been charged with felony first-degree murder in Arizona and the school intends to terminate his contract. The coach has been charged with one count of first-degree murder, a class one felony, according to a copy of the indictment obtained by the Idaho State Journal Thursday evening. He also faces one count of drive by shooting, a class two felony, and one count of discharging a firearm at a structure, a class three felony. (link)

Jun 03: Foreign Gifts Reporting: Every year, the Department of Education sends a checklist to colleges and universities reminding them of the various federal laws and regulations they have to comply with, including environmental standards, Title IX and FERPA, the Family Educational Rights and Privacy Act. For many years, that checklist did not mention any reporting requirements for foreign gifts and contracts. As a result, many higher education institutions were caught off guard in 2019 when the department began launching investigations of colleges and universities for noncompliance with the regulations. (link)

Jun 02: NCAA Violations: Augusta men's basketball program violated NCAA academic misconduct rules when the head and former assistant coaches provided academic assistance to a men's basketball student-athlete, according to a decision released by the Division II Committee on Infractions. As a result, the student-athlete competed in 16 contests and received competition-related expenses while ineligible. The direct involvement by the head coach and former assistant coach demonstrated the head coach's failure to promote an atmosphere of compliance and failure to monitor. (link)

Campus Life & Safety Events

Jun 24: Trespass/Burglary: A man with a criminal history of theft-related charges spanning decades is back in jail, and many of the crimes happened on local college campuses. According to police paperwork, the crime happened around 1 p.m. on Thursday in the University's administration building. The complaint states that a university employee reported the man going to his desk and trying to remove items from his wallet. In 2020, Duquesne University police charged the man with trespassing. He had pleaded guilty to several theft-related charges stemming from previous incidents at the University of Pittsburgh, UPMC and Carnegie Mellon University as well (link)

Jun 24: Vandalism: A 2021 Penn State graduate from Hillsborough, New Jersey, was charged with third-degree felony counts of institutional vandalism, criminal mischief, theft by unlawful taking and receiving stolen property in connection with the damage to the limestone sculpture in the early morning hours of May 8, when she also allegedly spray painted messages on Old Main and the Hintz Family Alumni Center. (link)

Jun 10: Hazing: Forty-six arrest warrants have been issued for members of a fraternity at the University of New Hampshire in an ongoing investigation into allegation of hazing. Police said 10 members of the Sigma Alpha Epsilon have been arrested as of Friday. An investigation was launched, and police said they found probable cause that the crime of student hazing had occurred. While authorities will not provide any details about what the nature of the alleged hazing was, News 9 has learned that the incident involved new members of the fraternity. (link)

Jun 02: Greek Life: Alumni of Theta Delta Chi Fraternity filed a lawsuit against Stanford University accusing administrators of "arbitrarily punishing the organization" after one of the fraternity's members died from a drug overdose. Stanford University imposed a six-year suspension on fraternity TDX in response to the death of freshman Eitan Michael Weiner. (link)

Other

Jun 08: FERPA and Politics: Before Herschel Walker entered Georgia politics as a Trump-endorsed Republican Senate candidate, he was perhaps best known in the state for his connection to the University of Georgia. Walker, who won his Senate primary last month, put his alma mater back in the headlines earlier this spring by repeatedly lying about his academic record during his campaign. Walker is far from the first U.S. politician to be caught fudging his academic record. (link)

If you have any suggestions, questions or feedback, please e-mail Kevin Robinson at robinmk@auburn.edu or Robert Gottesman at gotterw@auburn.edu. We hope you find this information useful and would appreciate hearing your thoughts. Feel free to forward this email to your direct reports, colleagues, employees or others who might find it of value. Back issues of this newsletter are available on our web site.