In the wake of heightened awareness – and much publicity — of campus security crises in recent years, the federal government has responded with far-reaching expansion of existing laws.
Will these new requirements ensure campus safety? Time will tell. But the clock is ticking as deadlines loom for colleges to show at least a “good faith effort’ that they are doing all they can to revise policies and procedures.
Below, a summary of the requirements and what your school can start doing now to get ready. DOE invites comments from the public on or before July 21, 2014, preferably in electronic form to the Federal eRulemaking Portal, at www.regulations.gov.
The new provisions of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) will profoundly change crime reporting responsibilities for all institutions of higher education that receive federal funding. By October 1, 2014, colleges and universities will have to make a “good faith effort” to include in their 2011-2013 Annual Security Reports additional crime categories and to analyze whether crimes were motivated by expanded categories of hate crimes. This is due to Section 304 of the Violence Against Women Reauthorization Act, a law that took effect October 1, 2013. Draft regulations issued June 20, 2014 indicate several areas of concern and contention that may delay final rulemaking, but they underscore the need for institutions to take action now to comply with Section 304.
Background
President Barack Obama’s signing of the Violence Against Women Reauthorization Act (VAWA) changed the landscape of the Clery Act reporting responsibilities for all institutions of higher education that participate in Title IV of the Higher Education Act programs.
Section 304 of this Act mandates reporting of three additional categories of crimes and two additional categories of hate crimes, with the potential for further confusion among the estimated two-thirds of institutions who even before VAWA have been reporting Clery crimes incorrectly.
On June 20, 2014 the U.S. Department of Education (DOE) issued the Proposed Rule for VAWA. The final regulations will be the product of a negotiated rulemaking process following public input. Final regulations are anticipated in late Fall 2014. However, institutions of higher education must make a “good faith effort” to include the new provisions of Section 304 in their Annual Security Reports (ASRs) due no later than October 1, 2014.
New Reporting Categories
Section 304 also adds gender identity and national origin to the previous six categories of hate crimes (crimes based on race, religion, gender, gender orientation, ethnicity, and disability). When crimes of larceny-theft, simple assault, intimidation, destruction of or damage to property, or any other crime involving bodily injury is reported, the crime must be examined to see if it relates to a specific category of hate crime, and identified as such in the ASR.
This means that institutions now must mount a good faith effort to devise a mechanism for examining past crimes in all these categories to see if the crimes were motivated by a particular category of hate crime bias.
New Definitions
The draft regulations indicate that some critical Clery Act definitions will be revised. For example, the definition of rape will be revised to include rape, sodomy, and sexual assault with an object. However, other definitions in the draft regulations speak to using definitions from local jurisdictions. This is sure to add confusion. In addition, the “Hierarchy Rule” has been modified in the draft regulations. The current Hierarchy Rule, that lesser crimes committed along with more major crimes need not be reported, is changed in the draft regulations to provide that when the two crimes of sexual assault and murder occur in the same incident, both sexual assault and murder must be reported separately. This “double reporting” also exists with respect to crimes committed in college and university dormitories. It remains to be seen whether the new definition of hierarchy will lead to “quadruple reporting” responsibilities.
Increased Specificity of Reporting
The draft regulations would require institutions to not only report details of disciplinary policies and procedures when receiving reports of sexual violence, but also the steps in deciding which disciplinary alternative to apply; and the sanctions that will be imposed. Timelines for each procedure must be specified. Protective measures that will be put into place for the alleged victim must also be described.
Victims of crimes must be provided with written information about procedures to follow if a crime of domestic violence, dating violence, or stalking has occurred, including the importance of preserving the evidence; how and to whom to report the crime, the option of involving law enforcement in addition to campus security, and the option of obtaining protective orders. Victims must also receive written information about options involved in changing academic living, transportation, and working situations, whether or not the victim chooses to report the crime. Institutions must also provide information about how they will protect the confidentiality of the victim while reporting crime information to the public.
Promptness, Fairness, Impartiality, and Prevention Efforts
The proposed regulations mandate that institutions provide prompt, fair, and impartial disciplinary hearings, and both accuser and accused must have the same opportunity to be heard and to have advisors present at the hearing. Hearings must be conducted by appropriately-trained and non-biased officials, but the exact nature of the training is not described. The Federal Rights and Privacy Act (FERPA) must not be an impediment to the proceedings, but, as stated above, confidentiality of the victim must be assured.
Accuser and accused must simultaneously receive written notification of the outcome of the proceeding and written details of the appeals process. Some have noted that this provision may encourage automatic appeals, even where the hearing established that the allegations of sexual assault were unfounded, forcing the accused to endure a second trial.
The draft regulations state that institutions will be required to provide and describe in their ASRs primary prevention and awareness programs to incoming students and new employees, including safe bystander intervention training. Ongoing prevention and awareness programs that contain the same information must be provided for all current students and employees. These prevention programs, the draft regulations state, must be “culturally relevant, inclusive of diverse communities and identities, sustainable, responsive to community needs, and informed by research or assessed for value, effectiveness, or outcome.”
In order to assist institutions in identifying such programs, DOE indicates that it expects to issue “best practices information” after the release of final regulations. However, DOE also stresses that the department will not mandate any specific policies, procedures, or programs; it will be up to the institutions to devise their own with the help of legal counsel.
Summary
The proposed regulations emphasize that the new section 304 requirements do not in any way change or lessen institutional obligations under Title IX of the Education Amendments of 1972 and its regulations or of the Dear Colleague Letters issued by the Office for Civil Rights. The Clery Act and Section 304 may overlap in some areas, but they remain separate and distinct mandates.
Whether the final regulations mirror these draft regulations, institutions need to start preparing for increased responsibilities now.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
