Tuesday, October 21, 2014

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.