Memorandum

City of Lawrence

City Attorney’s Office

TO:	David L. Corliss, City Manager
FROM:	Tarik Khatib, Chief of Police
DATE: CC:	February 11, 2015 Toni Wheeler, City Attorney; Maria Kaminska, Assistant City Attorney
RE:	City/KU Memorandum of Understanding

Background

In October 2014, City staff, including the City Manager, City Attorney, Chief of Police and other members of the Lawrence Police Department (LPD), met with top KU administrators to discuss the University’s obligations under federal law to investigate and report certain crimes. The meeting focused on ways in which the City and University could cooperate with each other in a way that both assists the University in meeting its federal requirements while not interfering with pending LPD investigations. The parties agreed to work together to draft a Memorandum of Understanding (MOU) identifying ways to reinforce the parties’ mutual cooperation and communication.

The University’s Obligations

The City currently has no legal obligation to provide investigative information to a college or university. However, certain colleges and universities are mandated to comply with two federal laws regarding crimes affecting campus: (1) The Clery Act; and (2) Title IX.

The Clery Act

Highly summarized, The Clery Act requires colleges and universities seeking to participate in federal financial aid programs[1] to report information about crimes occurring on campus and in certain areas off campus, like fraternities and sororities.[2] Applicable schools must disclose crime statistics for the previous two years on and near campus, including the crimes of domestic or dating violence or stalking. The schools must also maintain statistics on arrests, disciplinary action referrals for alcohol and drug violations, illegal weapons possession, and hate crimes, as well as provide security policies/procedures and victim rights information. Schools having their own police department must also maintain a public crime log providing specifics on reported crime, including the crime’s disposition, if available. Clery also requires schools to issue timely warnings regarding significant emergencies or threats to students and employees. Schools failing to comply with the law may be fined a considerable civil penalty.

Title IX

Title IX[3] is a federal civil rights law that prohibits discrimination on the basis of sex, which can include sexual harassment and sexual violence like rape and sexual battery, in any education program and activity. Among other things, the law requires schools receiving federal funding to promptly respond to and investigate any allegations of sexual harassment or sexual violence that create a “hostile” environment on campus. The fact that there may be a concurrent police investigation does not relieve the school from its own obligation to investigate. The school must also take immediate action to stop the harassment or violence and prevent it from occurring again in the future.[4] Schools must meet certain deadlines in conducting and completing their investigation, and the burden of proof is the lower preponderance of evidence standard rather than beyond a reasonable doubt as in criminal cases.[5]

Pending Legislation

Proposed federal legislation has been written that, if passed, would require applicable schools to enter into MOU’s with local law enforcement agencies.[6] Accordingly, the City is ahead by preemptively entering the current MOU.

The proposed federal legislation sets out requirements of what should be included in any MOU, including a “(1) delineation and sharing protocols of investigative responsibilities; (2) protocols for investigations, including standards for notification and communication and measures to promote evidence preservation; (3) agreed upon training and requirements for the institution on issues related to sexual violence; and (4) a method of sharing information about specific crimes, when directed by the victim, and a method of sharing crime details anonymously in order to better protect overall campus safety.”

Schools could be penalized with a hefty civil fine for failure to comply with the MOU requirement, and law enforcement agencies refusing to cooperate could be referred to the Department of Justice. The White House encourages such MOU’s,[7] although it is unclear yet whether this language will formally pass into law.

Memorandum of Understanding with KU

Following the October 2014 meeting, a smaller group was formed to draft the MOU. That group included members from the City Attorney’s Office and LPD, as well as representatives from KU’s legal department, Office of Public Safety, as well as KU’s Executive Director of Institutional Opportunity and Access and Title IX coordinator, Assistant Vice Provost, Vice and Assistant Vice Provost for Student Affairs, and Associate Vice Provost for Human Resources Management. The group met several times each month to discuss provisions to include in the MOU until a draft was completed in mid-January.

The MOU begins with a recitals section that sets forth the purpose of the document; namely, that the City and University have respective police departments and a mutual desire to maintain a strong, safe, and vibrant University and Lawrence community. It further states that the City recognizes KU’s obligations under federal law to investigate certain crimes affecting campus and agrees to communicate and cooperate when reasonable to assist KU. The MOU is a cooperative agreement and not a binding contract, and either party may terminate it upon 30 days’ written notice.

As set forth in the document, the MOU applies to crimes involving sexual violence, including rape, sodomy, and sexual battery. The City and University agree to communicate during their respective investigations of those crimes, to the extent permitted by law, provided the LPD does not reasonably believe doing so will jeopardize its own criminal investigation. When KU receives a report of sexual violence, it agrees to inform the victim of KU’s cooperation with the LPD and, if the victim consents in writing, will provide the victim’s name and basic information about the incident to LPD. Likewise, LPD will provide KU with the victim’s name and basic information, upon written consent of the victim.

The LPD also agrees to include on its victim resource card for victims of domestic violence and stalking, information about resources that KU can provide, including contacts at KU should the victim choose to reach out to them.

Additionally, the MOU provides that LPD agrees to cooperate with KU and undertake reasonable efforts to respond to KU’s request for crime statistics, although LPD already provides statistics upon request. LPD may also advise KU’s Office of Public Safety of any significant emergencies, dangerous situations, or ongoing crimes that pose an immediate threat to the health and safety of the campus community so that the school can issue timely emergency notifications or crime alerts as it is required to do under the law.

The MOU concludes with provisions concerning staff training and the agreement that the parties will share relevant educational information. The parties also agree to continued meetings to evaluate the MOU and determine its effectiveness and areas of possible improvement.

Additional Information

The MOU was presented to and approved by top KU administrators in mid-January.

Similar Meetings with Haskell Indian Nations University

Last fall, LPD met with staff from Haskell Indian Nations University to discuss Title IX requirements. The parties have since been in telephone contact with each other when questions arise, but a formal MOU has not been drafted. City staff will be happy to sit down with Haskell staff to draft an MOU, should a request for one be made.

Staff Recommendation

Approve the MOU with KU as written, and authorize the City Manager to sign it.

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[1] Department of Education, Federal Student Aid Letter, July 14, 2014,   

  http://www.ifap.ed.gov/dcpletters/GEN1413.hmtl

[2] 20 U.S.C. § 1092

[3] 20 U.S.C. §1681 et seq.

[4] (U.S. Department of Education, Office of Civil Rights, http://www.whitehouse.gov/sites/default/files/fact_sheet_know_your_rights.pdf).

[5]Dear Colleague Letter, April 2011, http://www.whitehouse.gov/sites/default/files/dear_colleague_sexual_violence.pdf)

[6] https://www.congress.gov/bill/113th-congress/senate-bill/2692/text (See Section 124)

[7] https://www.insidehighered.com/quicktakes/2015/01/27/guidelines-police-college-efforts-stop-sex-assault;  

  http://www.whitehouse.gov/sites/default/files/docs/white_house_task_force_law_enforcement_mou.pdf.