Head of the Lines: Constance Neary

The Office of Civil Rights at the U.S. Department of Education recently issued a “Dear Colleague” letter that provides new guidance to higher-education institutions on complying with Title IX of the 1972 Education Amendments  to the Civil Rights Act. Nearly any higher-education institution—private or public—that fails to comply with the letter could lose federal funds—and increase its risk of liability claims from victims as well as alleged perpetrators.

Constance Neary, vice president of risk management at United Educators Insurance, a risk-retention group for private and public schools, discusses the risk management implications of the letter for colleges and universities.

Q. What is the risk management issue relating to Title IX?

A. The  Education Department's April 2011 guidance letter addresses student-on-student sexual harassment and assault, which is having a greater impact on colleges and universities. This letter is extremely wide in scope and expansive in its directives, requiring improvements to non-discrimination policies, revisions to reporting and grievance procedures and the disciplinary process, the appointment of a Title IX coordinator, and training for the campus community on sexual-assault awareness and prevention. In many instances, the letter is ambiguous, and administrators and legal counsel for educational institutions fear that it  will be used in subsequent litigation as establishing a standard of care.

United Educators has focused recently on the April 2011 letter, ensuring that our member institutions are equipped to handle the potential fall-out from this guidance.

 The letter is clearly a response to strengthen victims' rights. The challenge for administrators will be in balancing these rights against those of the accused. Claims from alleged perpetrators who believe they have been treated unfairly by an institution following a reported sexual assault comprise a large percentage of the sex-assault claims reported to UE. These could increase if institutions overreact to the letter and fail to provide a student judicial process that is fair and impartial to both parties. 

Q. Has this problem already had an impact on schools' insurance programs? 

A. It's really too early to tell. Student sexual assault has been a long-stranding risk for higher-education institutions. Just how dramatically the Education Department's letter changes the nature of this risks remains to be seen. Our first strategy, rather than re-evaluating how we underwrite, is to focus on risk management and prevention. That said, UE has always been committed to appropriate coverage for educational institutions and providing a safety net when all their best efforts do not prevent a claim.

Q.  Are some schools more aggressive in addressing this problem than others? 

A. The current economy is affecting educational institutions in much the same way as other market sectors—administrators are being asked to do more with less. This has a direct impact on schools' ability to quickly and effectively address the Education Department's guidance letter. We're seeing that larger schools—with robust risk-management departments or resources—are better equipped to work on implementing requirements, such as policy revisions and Title IX coordinator appointments. In fact, many institutions made reviewing and revising their sexual-assault policies and procedures a top priority this summer.

Generally speaking, larger institutions have access to legal experts, a professional police force and staff with sex-assault expertise. This usually positions them better to respond to reports of sexual assaults and to train the campus community. It is often the smaller institutions that have a more difficult time complying with Title IX's many requirements within the confines of their budget and internal resources.

Q. What measures can schools take to address this issue?

A. We're advising our member institutions to focus on making changes in areas that can have the greatest impact in terms of deterrence and in response to the guidance letter.

 Key elements include of their response should include:

•  Appointing a Title IX Coordinator.
•  Educating the school or campus community on their role in prevention and reporting.
•  Revising policies and processes to ensure an appropriate response to those who report harassment and sexual violence.

Q. How is United Educators assisting its insureds with this issue?

A. We're offering a number of educational resources for our members, with an emphasis on distilling the most important aspects of the guidance letters.

We've published a series of advisories related to complying with the April 2011 guidance letter. We're also conducting a claims study followed by a roundtable discussion focused on lessons we've learned from sexual-assault claims that have been reported to UE. Lastly, we're exploring the development of an online course focused on raising awareness to support our members' prevention efforts.