What Does “Good Faith” Reporting Mean, and What Will It Cost to Miss the Mark?
Posted on September 8th, 2014
by Dr. Kathleen Conn
Ever since the Department of Education’s Office for Civil Rights (OCR) released the names of 55 institutions of higher education under scrutiny for possible Title IX violations in May, the media has been flooded with lurid personal accounts of mishandled sexual assaults on their campuses.
A Time magazine cover story and a two different large spreads in the New York Times were perhaps the most visible, but even more conservative publications like Business Week and The Atlantic covered coeds’ compelling stories. However, the real “black eye” for the colleges and universities involved in these media bursts is the public perception that these colleges and universities did not care about the effects of these assaults on the women involved.
The newly-reauthorized Violence Against Women Act mandates that all colleges and universities care, and that they show their care by reporting crimes on campus as mandated by Section 304 of the Act, the revised Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), and by providing assistance and support of various kinds to victims of a variety of crimes. Section 304 redefines rape using the FBI definition that includes rape, sodomy, and sexual assault with an object. The provision also adds dating violence, domestic violence, sexual assault, and stalking to the list of crimes that must be reported, and expands the categories of reportable hate crimes. With the increased reporting responsibilities comes an unforeseen urgency. Despite the fact that colleges were under no obligation to collect data on these re-defined and newly identified crimes until March 2014, colleges and universities now must make a “good faith” effort to report all Clery crimes that occurred in 2013, including the re-defined and newly identified crimes, in their Annual Security Report (ASR) due October 1, 2014.
A statute is one thing, agency regulations explaining the details of what is required under the statute are the nitty gritty. The final regulations for the new VAWA, including the new Section 304, will not be published by the Department of Education until at least November 2014, after the due date for the college and university security reports. Meanwhile, a July 14 Dear Colleague Letter (DCL) from the Office of Postsecondary Education attempts to clarify the reporting responsibilities of institutions of higher education by explaining what a “good faith” effort entails. Institutions should “use [the words of] the statute,” the DCL explains. So when the statute says to specify in their ASR the procedures an institution will follow after a report of dating violence, domestic violence, sexual assault, or stalking, the DCL continues, institutions must revise their policies to include those procedures, including identifying the standard of evidence that the institution will use in relevant disciplinary proceedings.
However, earlier directives from OCR, in the form of both a 2011 DCL and a 2014 Q&A, stress that the standard of evidence in institutional judicial disciplinary proceedings must be preponderance of the evidence in all allegations of Title IX violations. Does this mean that dating violence, domestic violence, sexual assault, and stalking are not violations of Title IX?
In accomplishing a good faith effort to comply with section 304, institutions are also expected to expand their existing policy statements to include information about how the institution will provide interim supports to the victim as her incident report is processed, including changes in transportation, academics, living and work arrangements, if requested by the victim. This may be problematic for smaller institutions with limited facilities and funding sources.
The Office of Postsecondary Education’s guidance ends with the sober reminder that neither this advice, nor the proposed regulations disseminated for public comment on June 20, is written in stone, and all bets are off until public comments are reviewed and the final regulations are released. But on anyone’s calendar, October 1 comes before November 1, and the 104 public comments published on Regulations.gov raise more questions than answers. The guidance asks for patience, and warns that the transition “may be difficult.” This may be the easiest part of the guidance to understand.
As an article in the Chronicle of Higher Education reported last year, failure to report Clery crimes correctly can be costly. According to the Chronicle, the highest fine so far was levied on Eastern Michigan University in 2008: $350,000. Yale University found to its dismay that two failures to report dating back to 2001 and 2002 cost the university $165,000 in 2008. The University of Texas at Arlington paid $82,500. The stakes are high.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.
What Does “Good Faith” Reporting Mean, and What Will It Cost to Miss the Mark?
Posted on September 8th, 2014
by Dr. Kathleen Conn
Ever since the Department of Education’s Office for Civil Rights (OCR) released the names of 55 institutions of higher education under scrutiny for possible Title IX violations in May, the media has been flooded with lurid personal accounts of mishandled sexual assaults on their campuses.
A Time magazine cover story and a two different large spreads in the New York Times were perhaps the most visible, but even more conservative publications like Business Week and The Atlantic covered coeds’ compelling stories. However, the real “black eye” for the colleges and universities involved in these media bursts is the public perception that these colleges and universities did not care about the effects of these assaults on the women involved.
The newly-reauthorized Violence Against Women Act mandates that all colleges and universities care, and that they show their care by reporting crimes on campus as mandated by Section 304 of the Act, the revised Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), and by providing assistance and support of various kinds to victims of a variety of crimes. Section 304 redefines rape using the FBI definition that includes rape, sodomy, and sexual assault with an object. The provision also adds dating violence, domestic violence, sexual assault, and stalking to the list of crimes that must be reported, and expands the categories of reportable hate crimes. With the increased reporting responsibilities comes an unforeseen urgency. Despite the fact that colleges were under no obligation to collect data on these re-defined and newly identified crimes until March 2014, colleges and universities now must make a “good faith” effort to report all Clery crimes that occurred in 2013, including the re-defined and newly identified crimes, in their Annual Security Report (ASR) due October 1, 2014.
A statute is one thing, agency regulations explaining the details of what is required under the statute are the nitty gritty. The final regulations for the new VAWA, including the new Section 304, will not be published by the Department of Education until at least November 2014, after the due date for the college and university security reports. Meanwhile, a July 14 Dear Colleague Letter (DCL) from the Office of Postsecondary Education attempts to clarify the reporting responsibilities of institutions of higher education by explaining what a “good faith” effort entails. Institutions should “use [the words of] the statute,” the DCL explains. So when the statute says to specify in their ASR the procedures an institution will follow after a report of dating violence, domestic violence, sexual assault, or stalking, the DCL continues, institutions must revise their policies to include those procedures, including identifying the standard of evidence that the institution will use in relevant disciplinary proceedings.
However, earlier directives from OCR, in the form of both a 2011 DCL and a 2014 Q&A, stress that the standard of evidence in institutional judicial disciplinary proceedings must be preponderance of the evidence in all allegations of Title IX violations. Does this mean that dating violence, domestic violence, sexual assault, and stalking are not violations of Title IX?
In accomplishing a good faith effort to comply with section 304, institutions are also expected to expand their existing policy statements to include information about how the institution will provide interim supports to the victim as her incident report is processed, including changes in transportation, academics, living and work arrangements, if requested by the victim. This may be problematic for smaller institutions with limited facilities and funding sources.
The Office of Postsecondary Education’s guidance ends with the sober reminder that neither this advice, nor the proposed regulations disseminated for public comment on June 20, is written in stone, and all bets are off until public comments are reviewed and the final regulations are released. But on anyone’s calendar, October 1 comes before November 1, and the 104 public comments published on Regulations.gov raise more questions than answers. The guidance asks for patience, and warns that the transition “may be difficult.” This may be the easiest part of the guidance to understand.
As an article in the Chronicle of Higher Education reported last year, failure to report Clery crimes correctly can be costly. According to the Chronicle, the highest fine so far was levied on Eastern Michigan University in 2008: $350,000. Yale University found to its dismay that two failures to report dating back to 2001 and 2002 cost the university $165,000 in 2008. The University of Texas at Arlington paid $82,500. The stakes are high.
This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.