dinse / knapp / mcandrew what student affairs professionals need to know about the law jeffrey j....
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DINSE / KNAPP / McANDREW www.dinse.com
What Student Affairs Professionals Need to Know
About the Law
Jeffrey J. Nolan, Esq.Dinse, Knapp & McAndrew, P.C.
www.dinse.com
www.dinse.com
Today’s Presenter• Jeffrey J. Nolan, Esq., Attorney at Dinse,
Knapp & McAndrew, P.C. http://www.dinse.com/attorneys/jeffrey-j-nolan.html
• Consultant to:– Sigma Threat Management Associates (
www.SigmaTMA.com)– Margolis, Healy & Associates (
www.Margolis-Healy.com)
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Agenda
• Common Law Issues• Statutory Issues• Privacy Law Issues• Practical/Risk Management Issues
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Scope of Presentation• This is a summary of selected legal issues of
interest to student affairs professionals• Not intended or attempting to be exhaustive• Focus is on federal law and commonly-applied
common law principles• Does not account for state statutes or case law
that applies only in particular states• This is not legal advice- you should consult
with counsel about specific situations
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Common Law Duties
Whether based on potential legal duties or a desire to follow good practice, institutions of higher education generally strive to:• Act reasonably to provide a campus
environment that is reasonably safe from foreseeable risks
• Hire, training and supervise employees appropriately
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Common Law Duties
Institutions also strive to:• Deal reasonably with foreseeable risks posed
by identified students who may pose a risk of harm to others
• Respond reasonably to identified potential self-harm issues
• Provide a physically safe campus environment and educational experience
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Common Law Duties• Acting reasonably in accordance with standard
of care is most basic obligation• Standard of care is informed by:
– Court decisions– Statutes and regulations– Widely accepted publications from reputable
organizations– Custom, practice in field– Opinions of experts
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Common Law Privacy Rights
• The common law privacy rights that may protect students include:
– The right to be free of undue invasions of privacy
– The right to be free of defamation
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Common Law Contract Issues• Sources of potential contract obligations to
students:– Formal contracts (e.g., housing contracts, financial
aid agreements)– Student handbook provisions– Other published institutional policies
• Institutions can change them, but usually are applied by courts as written at particular time– Institutions have more leeway in academic matters
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Constitutional Due Process
• Public institutions cannot deprive students of right to continued participation without first providing:– Notice of charges– Opportunity to be heard in defense– Impartial decision-maker– Report of the decision
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Statutory Civil Rights Obligations
• Federal statutes prohibit discrimination in education on basis of:– race, color, national origin (Title VI)– sex (Title IX)– disability (Section 504 & Americans with
Disabilities Act– age (Age Discrimination Act 1975)
• State civil rights laws often include parallel, and some expanded, prohibitions
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Federal Enforcement Context
• Department of Education’s Office of Civil Rights (“OCR”) enforces those laws
• OCR:– Investigates individual complaints– Conducts agency-initiated compliance reviews– Provides technical assistance to promote voluntary
compliance
• Theoretically can terminate federal funding, but practically, negotiates “voluntary compliance”
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Title IX
• Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance
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OCR Title IX Resources• April 2011 OCR Dear Colleague Letter: http://
www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
• OCR 2001 Revised Sexual Harassment Guidance: http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf
• 2010 Dear Colleague letter on Harassment and Bullying: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf
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Sexual Harassment Definition
• Unwelcome conduct of a sexual nature– includes unwelcome sexual advances, requests for
sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.
• Student-to-student harassment: – creates hostile environment if conduct is
sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.
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Sexual Violence Definition• Sexual violence is a form of sexual harassment
prohibited by Title IX.• Sexual violence refers to physical sexual acts
perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol, or intellectual or other disability
• May include rape, sexual assault, sexual battery, and sexual coercion
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Scope of Title IX Coverage• Title IX protects students from sexual
harassment in an institution’s education programs and activities, including:– All academic, educational, extracurricular, athletic,
and other programs of the institution– On-campus, off-campus, in transit, sponsored at
other locations, etc.
• Third parties on campus (particularly visiting students) may be protected as well
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Selected Title IX Obligations• If institution knows or reasonably should know about
sexual harassment that creates a hostile environment, Title IX requires immediate action to eliminate the harassment, prevent its recurrence, and address its effects.
• Train employees to report harassment to appropriate institutional officials
• Train employees with authority to address harassment, or who are likely to witness it or receive reports, how to respond properly– OCR examples: “teachers, school law enforcement unit
employees, school administrators, school counselors, general counsels, health personnel, and resident advisors.”
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Selected Title IX Obligations
• Investigate complaints adequately, reliably and impartially
• Provide grievance procedures that promote prompt, equitable resolution of complaints
• Undertake education and prevention efforts
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Title IX/Police Investigation Issues• Police investigations are not determinative of
whether sexual harassment/violence violates Title IX • Police investigations do not relieve institutions of
Title IX duty to resolve sexual violence complaints promptly and equitably
• Institutions cannot wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting
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Title IX Intake Issues• Employees likely to receive complaints
initially (e.g., medical, counseling, public safety, coaches, residence life, student affairs, etc.) must:– Be trained to recognize reports of sexual
harassment and sexual violence– Know where on campus (and off-campus) to direct
complainants for further support, procedures, etc.– Understand limits on requests for confidentiality– Understand what “not to say” in intake discussion
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Title IX/Interim Measures Issues• Consider whether interim measures are appropriate
immediately upon receiving complaint• Examples include:
– Separating the parties (changing academic schedules, housing)
– Instructing the respondent not to have contact with the complainant or to go to areas where the complainant is expected to be present
– Interim suspension: Justified if the respondent’s remaining part of the community appears reasonably to pose a risk of danger (e.g., stalking, further violence, retaliation); At public institutions, offer a pre-suspension hearing
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Title IX/Confidentiality Issues• “If the complainant requests confidentiality or asks that
the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.”
• “If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited.”
April 4, 2011 Dear Colleague Letter
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Title IX/Confidentiality Issues• “In some cases, such as those where the school is required
to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant’s confidentiality.”
• “The school should inform the complainant if it cannot ensure confidentiality.”
• “Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.”– (e.g.: education and prevention programs)
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Title IX/Confidentiality Issues• If complainant continues to insist on complete
confidentiality, institution “should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students.”
• Institution may weigh confidentiality request against:– seriousness of the alleged harassment; – complainant’s age; – whether there have been other harassment complaints about
the same individual; and – the alleged harasser’s potential right to review documents re
allegations if contained in a FERPA “education record”
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Requests for Confidentiality – Suggested Solutions (IF No Current/Future Threat)
• Let student know about confidential campus resources • offer to walk there with the student or have staff
come to your office to see the student• Be clear that institution wants to help and when
student is ready for institution to act, to come back to talk
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Requests for Confidentiality – Suggested Solutions (IF No Current/Future Threat)
• Make sure your confidential campus resources are knowledgeable about your policies and procedures
• Be certain you know and have defined in published policies who is and who is not “confidential” for state privilege and Clery Act purposes
• Be certain your confidential resources are trained re Title IX, and support institutional processes
• Document communications and resolution
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Campus Sexual Violence Elimination Act (“Campus SaVE Act”)
• Part of Violence Against Women Reauthorization Act (“VAWRA”) of 2013
• Intended to: amend the Higher Education Act “to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking”
• Violence Against Women Act (1994) comes to campus
• Effective March, 2014
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VAWA Definitions
• “Domestic violence” means crime of violence committed by spouse, cohabitant, parent of victim’s child, or similarly situated person– as relationships/protections are defined under state
domestic or family violence laws
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VAWA Definitions“Dating violence” means violence committed by a person
– Who is or has been in a social relationship of a romantic or intimate nature with the victim
– Where the existence of such relationship is determined based on consideration of:
Length and type of relationship and
Frequency of interaction between persons involved
Train campus on state law definition of dating violence
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VAWA Definitions
• “Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:– Fear for his or her safety or the safety of others; or– Suffer substantial emotional distress
• Train campus on state law definition of stalking
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New Policy Requirements
• Each IHE receiving federal funding under HEA must develop and distribute in its Annual Security Report a statement of policy regarding– The institution’s programs to prevent domestic violence,
dating violence, sexual assault, or stalking; and– the procedures that the institution will follow once an
incident of domestic violence, dating violence, sexual assault, or stalking has been reported
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Advocacy Statements
Policy statements must provide:• Notification about existing counseling, health, mental health,
victim advocacy, legal assistance, and other services available to victims both on-campus and in the community
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Confidentiality Statements• Clery Act “timely warnings” must “withhold the
names of victims as confidential”• Must include statement of:
– “Information about how the institution will protect the confidentiality of victims, including how publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law.”
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Procedural StatementsPolicy statements must cover:• Possible sanctions or protective measures that the
institution may impose following the final determination of an institutional disciplinary procedure regarding rape, acquaintance rape, DV, DV, SA or stalking
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Procedural StatementsPolicy statements must cover:• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:– Importance of preserving evidence as may be necessary to
proof of criminal DV, DV, SA or stalking, or in obtaining protective order
– To whom offense should be reported
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Procedural StatementsPolicy statements must cover:• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:– the right of victims of such offenses to notify proper law
enforcement authorities, including on-campus and local police;
– the option to be assisted by campus authorities in notifying such authorities if the student or employee so chooses; and
– the right of victims of such offenses to decline to notify such authorities;
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Procedural Statements
Policy statements must cover:• Procedures victims should follow if DV, DV, SA or
stalking has occurred, including info about:– Where applicable, the rights of victims and the institution’s
responsibilities regarding orders of protection, no contact orders, restraining orders, or similar lawful orders issued by a court
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Procedural StatementsPolicy statements must cover:• Procedures for institutional disciplinary action in
cases of an alleged incident of DV, DV, SA or stalking, which shall include a clear statement that such proceedings shall:– provide a prompt, fair and impartial investigation and
resolution;– be conducted by officials who receive annual training on
issues related to DV, DV, SA, and stalking and how to conduct an investigation and hearing process that “protects the safety of victims and promotes accountability”;
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Procedural Statements
• Must include statement of the standard of evidence that will be used in cases involving DV, DV, SA or stalking– Campus SaVE Act does not mandate particular (i.e.,
preponderance of evidence) standard– Office of Civil Rights Dear Colleague Letter requires, as
matter of OCR enforcement policy, preponderance of evidence standard
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Procedural Statements• Campus SaVE: both parties are entitled to
same opportunities to have others present during disciplinary proceedings– Including opportunity to be accompanied to any
related proceeding or proceeding by an advisor of their choice
• Time will tell as to whether that could include legal counsel
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Procedural Statements• Both parties must be simultaneously informed in
writing of the outcome of any disciplinary proceeding that arises from allegation of DV, DV, SA or stalking
• FERPA note: In cases that involve sexual harassment, but not sexual violence, complainant can only be informed of those sanctions directly related to complainant, such as an instruction to respondent not to have any contact with complainant
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Procedural Statements
Policy statements must cover:• Institution’s procedures for both parties to appeal the
results of disciplinary proceeding• Notice of any change to the results before they
become final• When such results become final
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Procedural StatementsPolicies and procedures to ensure that student or employee who reports that he/she has been the victim of DV, DV, SA, or stalking:
• shall receive information about options for, and available assistance in, changing academic, living, transportation, and working situations
• if such assistance is requested by the student or employee and if such accommodations are reasonably available
• Regardless of whether victim chooses to report to campus police or local law enforcement
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Anti-Retaliation Provision
No officer, employee, or agent of an IHE “shall retaliate, intimidate, threaten, coerce, or otherwise discriminate against any individual for exercising their rights or responsibilities under any provision of this subsection”
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Educational RequirementsCampus SaVE requires description of education programs to promote awareness of offenses of DV, DV, SA and stalking, which shall include:• primary prevention and awareness programs for all incoming
students and new employees, which shall include:– statement that institution of prohibits offenses of DC, DV,
SA and stalking;– definition of DV, DV, SA and stalking in applicable
jurisdiction;– the definition of consent in reference to sexual activity in
jurisdiction;
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Educational Requirements
Campus SaVE requires description of educational programs regarding:
• Safe and positive options for bystander intervention; • Information on risk reduction to recognize warning
signs of abusive behavior and how to avoid potential attacks; and
• ongoing prevention and awareness campaigns for students and faculty
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Clery Act Basic Requirements• Collect specified crime and fire statistics and
create mandated daily logs, annual reports, etc.• Adopt and publish specified safety/security-
related policy statements• Adopt timely warning, emergency notification
and missing student policies and procedures
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Clery “Campus Security Authorities”• Campus police/security department/access
monitors• Individual or offices designated to receive
crime reports• Officials with significant responsibility for
student and campus activities, e.g.:– Resident assistants– Student housing, student life and athletics staff
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Clery “Campus Security Authorities”
• CSAs must:– “report allegations made in good faith to the reporting
structure established by the institution.”
– “A crime is reported when it is brought to the attention of a campus security authority or the local police by a victim, witness, other third party, or even the offender.”
– IHE must disclose crime reports regardless of whether any of the individuals involved in either the crime itself, or in the reporting of the crime, are associated with the institution
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Clery Enforcement
• Dep’t of Ed. has stepped up Clery enforcement significantly in recent years
• Fines of $35,000 per violation are possible• Six-figure fines as result of compliance
reviews/investigations are becoming commonplace
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Americans with Disabilities Act/Section 504 Scope
• A student is protected under the ADA, as broadened substantially by the ADA Amendments Act of 2008 (“ADAAA”), if he or she has a “disability,” defined as follows:
– A physical or mental impairment that substantially limits one or more major life activities, or conditions affecting the operation of major bodily functions
• “Disability” includes: mental health conditions which substantially limit an individual’s ability to learn, concentrate, think, and communicate
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ADA/Section 504 Scope• Disability laws also prohibit discrimination
against an individual who:– Has a “record” of having a disability such as – A past diagnosis of mental illness which is in
remission at the time of assessment, or– Past participation in a drug abuse treatment
program
OR• Is “regarded as” having a disability
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“Direct Threat” Issues• Under the “direct threat” exception, an
institution can determine that an otherwise-protected individual’s disability-related behavior or misconduct cannot be tolerated or accommodated
• “Direct Threat” means “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation”
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The duration of the risk
The nature and severity of the potential harm
The likelihood that the potential harm will occur
The imminence of the potential harm
In determining whether an individual would pose a direct threat, the factors to consider include:
Direct Threat
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“Threat to Self” Issues• Under current DOJ/OCR position:
– “Threat to self” cannot fall within “direct threat” exception
• Must deal with threat to self situations (e.g., suicide attempts, life-threatening eating disorders, etc.) as disciplinary, voluntary withdrawal, or “not otherwise qualified” matters
• Don’t forget that students must be “otherwise qualified” to participate in institution’s academic and residential programs
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FERPA Fundamentals• Unless an exception applies, FERPA prohibits
nonconsensual disclosure of information from education records which is personally identifiable or easily traceable to an individual student
• Education record means any information recorded in any way and maintained by institution
• Disclosure without consent may be made to school officials with “legitimate educational interest” in receiving information
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Pertinent FERPA Exceptions• Law enforcement unit records:
– Records created by security department/campus police department that were created for a law enforcement purpose
– Only applies if in the hands of campus security/campus police
• Health or safety emergency:– Institution may disclose records without consent to
appropriate parties (including parents) in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals
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Pertinent FERPA Exceptions• Disclosure to other institutions where the
student seeks or intends to enroll– Subject to the requirements of § 99.34 regarding
specific or general notice of disclosure to the student
• Disclosure to parents of dependent students• Disclosure pursuant to judicial order or
lawfully issued subpoena• Student treatment records
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FERPA Enforcement
• No private right of action to enforce FERPA– Means IHEs cannot be sued for violating FERPA
(though they should be careful not to “promise” in student handbook that they will comply)
• Family Policy Compliance Office that enforces FERPA does not fine institutions, attempt to terminate federal funding or do intensive investigations
• Instead, seeks assurance of future compliance and provides technical assistance
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Health Insurance Portability and Accountability Act
• HIPAA usually applies, for practical purposes, only where institution engages in certain “covered transactions” (e.g., billing) electronically for health care services
• Some institutions apply and adopt more broadly given health care-related operations
• Practical approach: if HIPAA is being cited by another institutional official to restrict sharing of information you need, dig deeper to understand whether really applies or not
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HIPAA• If HIPAA does apply to your institution generally:
– HIPAA does not apply to “student treatment records” (e.g., counseling/student health ctr.)
– Student treatment records are covered by FERPA and therefore are deemed exempt from HIPAA
– So, FERPA principles and exceptions apply
• HIPAA exception permits disclosure where necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public– Can disclose to people reasonably able to prevent or
lessen threat (including to target)
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Documentation Issues• Prudent to treat sensitive student information
“confidentially”– That is, on a need to know basis with others within
the institution
• Recognize that even “confidential” information will generally be subject to disclosure in the event of a civil rights enforcement agency investigation or litigation unless it constitutes privileged attorney-client communication
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Documentation Issues
• Definition of documentation potentially subject to disclosure is very broad
• Usually includes:– electronically stored information – e-mail messages– “personal notes”
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Risk Management Approaches
• Student care teams• Threat assessment and management
teams• Case management approaches
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Contact Information
Jeffrey J. Nolan, Esq.
Dinse, Knapp & McAndrew, P.C.
Burlington, Vermont
www.dinse.com
(802) 864-5751
http://www.dinse.com/attorneys/jeffrey-j-nolan.html