Thursday, August 08, 2013

Campus SaVE Act Codifies Institutions' Sexual Assault Response Requirements

As I posted yesterday, I just attended the annual conference of the Association of Title IX Administrators, an organization doing good work to empower Title IX coordinators and other college, university, and K-12 officials with information and strategies for compliance and best practices. One of the most valuable sessions for me was the one focused on the recent congressional amendments to the Clery Act (see part f), the statute that requires post-secondary institutions that participate in federal financial aid programs to report statistics on various campus crime, including sexual assault. While the Clery Act is a distinct statute from Title IX, the overlap and interrelation between the two warrants ATIXA's focus as well as the focus of this blog.  

The amendments, collectively known as the Campus Sexual Violence Elimination Act (Campus SaVE Act), were passed as part of Congress's reauthorization of the Violence Against Women Act earlier this year.  Campus SaVE adds new crimes to the list of those which, under Clery, must be tallied and reported to the government in annual security reports (ASRs). In addition to statistics on sex offenses, both forcible and non-forcible, that must already be reported, ASRs must now include data on occurrences of domestic violence, dating violence and stalking.  Campus SaVE also requires institutions to report on their policies and procedures designed to prevent and address sexual assault and other intimate partner violence.  These policies must include provisions regarding the institution's obligation to notify victims of their rights to report and pursue relief from local law enforcement, as well as to provide information about available campus resources and possible accommodations.  Institutions' disciplinary procedures used to address accusations of sexual assault/violence must include specific provisions meant to equalize the playing field between accused and accuser, such as the accuser's right to request prompt proceedings, the right of both parties to be accompanied by an advisor and to present testimony, and the right of both parties to be informed of the proceeding's final results.  Institutions must also report to the government what efforts they undertake to prevent campus sexual violence, specifically including programs aimed at primary prevention (i.e., stopping rape and violence before it occurs) that extend beyond risk reduction (e.g., telling female students not to walk alone at night or leave their drinks unattended at a party).  The efforts described must also include information on bystander intervention and a clear definition of consent. 
In many ways, the new requirements under Campus SaVE echo the compliance steps OCR laid out in its 2011 Dear Colleague letter containing its interpretation of how Title IX requires colleges and universities to prevent and address sexual violence.  But, as the ATIXA presenters explained, it is significant that these requirements now appear as part of a congressional statute. Unlike agency policy, which can change with the next presidential administration, statutes can only be amended by a majority vote of Congress.  Moreover, as a part of the Clery Act, the Campus SaVE provisions are likely to have more teeth, since Clery authorizes the Justice Department to issue fines for noncompliance.  In contrast, OCR’s primary weapon in Title IX enforcement—revocation of federal funds—is a gun too big to use, which as a result has never been fired.  Title IX violations are thus often remedied by nothing more than a promise to do better, while Clery Act fines are serious business (hello Yale) that are likely to operate as a stronger deterrent to noncompliance.       
ATIXA's presentation on these requirements provided straight talk to educational administrators about compliance.  This is not an organization devoted to finding loopholes and helping institutional members get away with minimal compliance.  Yes, ATIXA presenters kvetched about the many ways in which these new requirements are not college and university-friendly.  But part of their message was that government intervention—whether in the form of congressional statute, or a steady stream of new Dear Colleague Letters from the OCR—is the price institutions pay for their past attitudes of minimalism and avoidance.  The underlying message, tailored to the audience of university administrators, was: you can look for loopholes, and play roulette with enforcement; but if you want the government to back off and trust you, start doing the right thing.  Imbue your compliance efforts with the primary motivation of actually helping to report, investigate, address, and prevent sexual assault and other gender-motivated crime.  Do what’s right for students, for their sakes, and at the same time, you'll be doing what's right for the sake of avoiding liability and noncompliance.