NAICU Washington Update

Department of Education Issues Proposed Regulations Dealing with Campus Sexual Assault

June 27, 2014

Campus sexual assaults were the focus of proposed regulations issued June 20 by the Department of Education. The regulations include new requirements dealing with the reporting of instances of sexual violence; sexual assault primary prevention and awareness programs and campaigns; protective measures; and campus disciplinary procedures.

The proposals were developed to implement changes made by the Violence Against Women Act to the Clery campus safety provisions of the Higher Education Act.

The proposals were developed by a negotiated rulemaking committee that achieved “consensus.” Consensus in a negotiated rulemaking context does not mean 100 percent agreement, nor is it determined by a majority vote. Rather, it means that a compromise that can be accepted by all participants has been reached. If consensus is reached, the members of the negotiated rulemaking team and the organizations that nominated them as their representatives agree that they will not comment negatively on the consensus-based regulatory language. Additional information about the committee’s decisions may be found here.

Because a NAICU-nominated candidate was selected to serve on the negotiated rulemaking panel, the Association cannot submit comments on the proposed regulations. Anyone who wishes to comment on the proposals may do so through the Federal eRulemaking portal or by mail addressed to: (Comments submitted by fax or e-mail will not be accepted)

Jean-Didier Gaina
U.S. Department of Education
1990 K Street NW., Room 8055
Washington, DC 20006–8502
Include the Docket ID [ED-2013-OPE-0124] at the top of your comments. The 30-day public comment period for the proposal will close on July 21, 2014.

Department of Education’s Summary of the Major Provisions of This Regulatory Action [See Federal Register, June 20, 2014, pages 35418-19.]

The proposed regulations would:

  • Require institutions to maintain statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that meet the proposed definitions of those terms.
  • Revise the definition of “rape” to reflect the Federal Bureau of Investigation’s (FBI) recently updated definition in the UCR Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System.
  • Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into independent categories.
  • Require institutions to provide, and describe in their annual security reports, primary prevention and awareness programs to incoming students and new employees. These programs must include: a statement that the institution prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking; the definition of these terms in the applicable jurisdiction; the definition of consent, in reference to sexual activity, in the applicable jurisdiction; a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution’s policies and procedures after a sex offense occurs.
  • Require institutions to provide, and describe in their annual security reports, ongoing prevention and awareness campaigns for students and employees. These campaigns must include the same information as in the institution’s primary prevention and awareness program.
  • Define the terms “awareness programs,” “bystander intervention,” “ongoing prevention and awareness campaigns,” “primary prevention programs," and “risk reduction.”
  • Require institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking.
  • Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking.
  • Require institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking.
  • Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding in which (1) officials are appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt timeframe; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely access to information that will be used after the fact-finding investigation but during informal and formal disciplinary meetings and hearings.
  • Define the terms “proceeding” and “result.”
  • Specify that compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).

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