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Colleges and universities have seen an increased and sustained focus on their handling of sexual assaults on their campuses. Recent Congresses and the Obama Administration launched numerous initiatives aimed at highlighting the issue, devising approaches to address it, and strengthening enforcement, although the Trump Administration has made several significant changes to these efforts. Many states have also launched initiatives in this area.
In addition, advocacy groups have been active in highlighting the issue, and the topic has received widespread media attention.
Federal Requirements and Initiatives
Two federal laws address sexual violence at institutions of higher education. The first is the Clery Act, which addresses
Campus Safety by requiring institutions of higher education to disclose campus crime statistics and security policies. The Clery Act was amended most recently by the Violence Against Women Reauthorization Act of 2013.
Final regulations implementing these changes went into effect on July 1, 2015.
The second federal law that addresses campus sexual assault is Title IX, which prohibits discrimination on the basis of sex in federally funded programs or activities. The Department of Education’s Office for Civil Rights aggressively pursued Title IX enforcement activities through the end of the Obama Administration. During this period, the Department issued guidance documents related to campus sexual assault in
2011,
2014, and
2015.
The Trump Administration, however, is currently in the process of developing new Title IX regulations related to campus sexual assault. In 2017, the Department rescinded the Obama Administration's 2011 and 2014 campus sexual assault guidance and replaced it with
new, interim guidance that will remain in effect until the Department issues new regulations. The Department has also modified its Title IX enforcement efforts with respect to campus sexual assault by shifting investigative focus to other types of discrimination claims, and by reducing the length and breadth of investigations.
On November 29, 2018, the Department issued
proposed Title IX regulations on campus sexual assault. The new rules appear to offer some additional flexibility and reduced liability for institutions of higher education, while also preserving supportive services for survivors of sexual assault and adding numerous procedural protections for accused students. Although some of these procedural protections may be warranted to assure fairness for accused students, there are also concerns about the impact these new procedural requirements are likely to have on sexual assault survivors and educational institutions alike.
The proposed regulations are subject to a 60-day public comment period, which ends on January 28, 2019. After the comment period closes, the Department will respond to the comments and issue final rules, which are likely to differ somewhat from the proposed regulations. NAICU has created a
detailed summary of the requirements in the proposed regulations.
Finally, bipartisan legislation — most notably the
Campus Accountability and Safety Act (CASA) — has been introduced in recent congressional sessions.
Reauthorization of the Higher Education Act could also provide an opportunity to address the issue.