The Department of Education released draft proposed regulations implementing the changes Congress made to the Clery Act as part of the Violence Against Women's Act reauthorization last year. The draft was compiled with input from a negotiated rulemaking committee, which is in theory supposed to produce a consensus-based regulation that is less likely to be challenged and hung up in judicial review. True to form, much of the proposed regulation seems unlikely to garner controversy. The proposal provides details to the new Clery Act provisions that govern colleges' and universities' obligation to compile and report crime statistics, including sexual violence defined broadly to include domestic violence, dating violence, and stalking. The regulations also detail institutions' obligation to disclose "primary prevention" and awareness-raising efforts, as well as the disciplinary procedures the institution uses for addressing instances of sexual violence that are reported to campus officials. According to the proposed regulations, such procedures must, "at a minimum comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights."
It is this last point that is proving to be controversial, as noted in this article. Some see the reference to "guidance" as signalling a back-door requirement that institutions adopt the preponderance of evidence standard for student disciplinary proceedings. That is the standard explicitly mentioned in the Department's Dear Colleague Letter issued April 4, 2011, which spells out universities' responsibilities under Title IX to provide a fair disciplinary hearing that takes the rights of victims and potential future victims into account. Congress did not specify a preponderance standard or any standard when it passed the Clery amendments last year. This kind of legislative silence is typically resolved by regulation, as the Department of Education is doing now. Yet rather than name the preponderance standard directly, the Department seems to be incorporating it by reference to the current guidance. This itself could reflect a negotiated or compromise solution, as it only gives regulatory force to the preponderance standard for as long as the guidance stays in effect. If the Department changes or repeals the 2011 Dear Colleague Letter in the future, the regulatory requirement under Clery would change with it as well.