Dear Colleague…

August 18, 2014

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Former ACE General Counsel Ada Meloy looks at what the Department of Education means by telling colleges to make a “good faith effort” to comply with changes to the Clery Act before final rules are released.

As we’ve all seen from the many high-profile stories over the past year or so, dealing effectively with sexual assault on campus is a complex, highly emotional situation for everyone involved.

Colleges and universities across the country are in the process of revisiting a number of difficult questions: How do we, as institutions, provide a safe environment for all students? What is the best way to educate students, faculty and staff about the issue? And most importantly, how do we respond swiftly, compassionately and competently when one of our students comes forward with a report of sexual assault?

And through it all, we must try as best we can to follow the requirements handed down by the U.S. Department of Education—requirements not always set forth in duly promulgated regulations that permit “notice” and “comment.”

A range of federal laws—the Clery Act, Title IX, and the Violence Against Women Act (VAWA)—address campus sexual assault, and institutions must comply with multiple and often duplicative provisions in these statutes along with the regulations and guidance documents designed to implement them.

Before introducing the latest wrinkle thrown to campuses by the federal government, I want to underscore that sexual assault at colleges and universities is a serious problem. Protecting students is paramount to the mission of all institutions, and we know that sometimes we fail.

But to help achieve real change, the federal government must partner with the higher education community on a single, clear set of federal requirements in this area. The legal ambiguities and overlap should be clarified so institutions are completely aware of the expectations and responsibilities, and complainants and accused students have a clearer understanding of their rights.

In the meantime, however, there are more new directives to digest.

Changes to the Clery Act: A Timeline

The Violence Against Women Reauthorization Act, signed into law in March 2013, made a number of changes to the Clery Act, which requires colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their campuses.

Under the amended law, colleges are required to compile and report statistics for incidents of dating violence, domestic violence and stalking, in addition to the existing reporting requirements for certain crimes, including sexual assaults. Other changes include adding gender identity and national origin as categories of bias under the Clery Act’s definition of hate crimes; requiring institutions to ensure that their disciplinary proceedings are prompt, fair and impartial; strengthening protections for victim confidentiality; and requiring programs to prevent dating violence, domestic violence, sexual assault and stalking.

On June 20, 2014, the Education Department (ED) released a proposed rule to implement these changes. The language for the rule was negotiated by a rulemaking panel comprised of students and representatives from advocacy organizations, law enforcement, colleges and other groups in a series of sessions held earlier this year.

The final rule is expected on or before Nov. 1 and would be effective July 1, 2015.

In the interim, ED has advised institutions that they must abide by the statute, a directive made by a Dear Colleague letter published on July 14.

Following the Dear Colleague Letter

ED distributes Dear Colleague letters (DCL) to provide interpretive policy guidance about department programs and laws that impact schools, colleges and universities. Typically, ED issues a DCL to provide interim guidance after Congress passes a law or between releases of final regulations. These DCLs are issued without notice or the opportunity to comment, both of which are mandated by the Administrative Procedure Act, the 1946 law directing how federal agencies should issue binding regulations.

The VAWA DCL refers back to ED’s May 2013 “Electronic Announcement” that states institutions must make a “good faith effort” to implement the law until final regulations are published and in effect. This effort includes collecting statistics on the new Clery crimes from March 7 through Dec. 31, 2013, and including these numbers in the annual security report due Oct 1, 2014, even though the regulations outlining how to count new incidents are not yet final.

We are hopeful the “good faith” descriptor will give institutions some leeway, but of course, there is no guarantee.

The DCL also instructs colleges to include in their October report a “statement of the standard of evidence that will be used during any institutional conduct proceeding.” What it does not point out, however, is that institutions must adopt a “preponderance of evidence” standard or they will be in considered in violation of a previous DCL issued in 2011.

To complicate matters further, the DCL directs that institutions should be working now to expand existing policy statements to include information about how they will “facilitate changes in a victim’s transportation and working situations, in addition to academic and living situations, if requested by the victim.”

Good Faith in a Difficult Transition

The DCL warns institutions not to rely upon any training that might be offered on how to comply with the new Clery requirements, because the proposed regulations “may be changed after we review the public comments.” (See ACE’s comments, filed July 21). Such training apparently would not demonstrate a “good faith” effort at statutory compliance.

ED acknowledges that the “transition may be difficult” and asks colleges and universities for their patience. However, the department gives no assurance that any good-faith actions institutions might take will provide a defense to an enforcement proceeding or compliance review. Only ED’s Office for Civil Rights will be the arbiter in determining, after the fact, whether institutions have acted in good faith.

If you have any questions or comments about this blog post, please contact us.

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