NAICU Washington Update

Consensus Reached By Negotiated Rulemaking Panel on Campus Sexual Assault Regulatory Changes

April 11, 2014

Expanded annual crime statistics reports, enhanced prevention and awareness programs, and new rules for conducting disciplinary proceedings, including the presence of attorneys, moved one step closer to reality April 1 when a negotiated rulemaking panel reached consensus on proposed regulations to implement new legislation.

The changes in campus safety requirements were mandated by the Violence Against Women Act (VAWA). The Education Department will soon publish proposed regulations reflecting the consensus language that was agreed upon by the panel. Following a public comment period, the Department is expected to issue final regulations prior to November 1.

VAWA included significant revisions to the Clery Act campus safety provisions, and these changes are reflected in the proposed regulations. If the proposed regulations are adopted in the final rule, institutions should be aware that:

(1) Annual crime statistics reports will be expanded to incorporate incidents of stalking, dating violence, and domestic violence. In addition, national origin and gender identity will be added as hate crime categories. The FBI’s “hierarchy rule,” which is generally applied to Clery crime reporting, will be suspended in reporting sexual assaults. Under the “hierarchy rule,” only the most serious offense is counted when more than one offense is committed in a single incident. The sexual offense exception will mean that a single incident with multiple offenses will be counted multiple times on an institution’s crime report. At the same time, several definitions were clarified so that counting issues and questions should be reduced.

(2) New requirements for prevention and awareness programs and campaigns are spelled out in some detail in the proposal. A number of even more specific proposals were raised during the discussions, but the negotiators agreed that they would be more appropriate as handbook material. The handbook offers guidance to institutions, but its suggestions do not carry the force of regulation.

(3) The proposed regulations make clear that that an institution may not preclude either party in a campus disciplinary proceeding from being accompanied by an advisor of their choice, although the institution can limit the advisor’s participation in the proceeding. The proposed rule has the effect of permitting attorneys to be present, a practice that many institutions currently prohibit. This reading of the statute was strongly contested by NAICU’s nominee to the panel, Dickinson College General Counsel Dana Scaduto, who noted that it represents a “sea change” in the handling of disciplinary proceedings. Education Department officials indicated their interpretation of the statutory language would not change.

Earlier versions of the proposed regulations had also included a definition of “consent” and had required compliance with all subregulatory guidance issued by the Office of Civil Rights. These problematic provisions were dropped from the final proposal, providing a pathway for consensus. More detailed information about this negotiated rulemaking proceeding may be found here.  NAICU will continue to monitor developments on this issuel.