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Campus SaVE Act

Weekly Roundup
Posted by On Friday, April 18, 2014

How, where, when, and to what extent should school, media, and professors talk about sexual assault and other forms of sexual and domestic violence? As Sexual Assault Awareness Month continues we want to highlight three stories that involve how and how much sexual assault should be addressed in different contexts.

Lawmakers Call for College Rankings to Factor in Rates of Sexual Assault

One place that sexual assault is not being addressed is in college rankings. While the likelihood that their students may be sexually assaulted might seem to be a fairly crucial factor in determining the quality of the student experience at a given institute of higher learning, it’s not one of the seven factors U.S. News & World Report uses to create their annual ranking of American colleges. Now, lawmakers are looking to change that. Twelve members of the House of Representatives have written a letter to U.S. News and World report urging them “to include violence statistics…and information about institutions’ efforts to prevent and respond to incidents of campus sexual assault…when ranking colleges and universities.” According to the letter, published on the opinion page of U.S. News, “institutions that fail to adequately respond to sexual violence should not receive accolades from your publication.”

The Trigger Warning Debate

How faculty address sexual assault in class discussions and material has also raised questions about whether they should include trigger warnings. Trigger warnings are used to label content that might be upsetting for people who suffer from PTSD or have had traumatic experiences. Sexual assault is just one of many topics that might require such a warning. Others include genocide, war, suicide, murder, or other topics that could trigger a negative reaction in survivors of traumatic experiences. While trigger warnings have existed in the blogosphere for some time without raising much controversy, their migration to the classroom has provoked a backlash. Faculty at UC Santa Barbara and Oberlin College have balked at policies that would require trigger warnings for syllabi and lectures, and editorials in the Los Angeles Times and the New Republic have decried those rules as an obstacle to academic freedom and real education.

Responding to Sexual Assault without Title IX, the Clery Act, and the Campus SaVE Act

How would colleges and universities address sexual assault if it weren’t for laws with reporting requirements such as Title IX, the Clery Act, and the Campus SaVE Act? One example comes from Patrick Henry College, one of four private schools in the country that accepts no federal aid and is thus not obligated to comply with these federal laws. While the university’s student body may be free of Pell Grants, the same cannot be said, unfortunately, for sexual assault. In February, the New Republic published an exposé in which several former students alleged that they had been assaulted by male students at PHC, and that the school’s responded by blaming them and making excuses for their attackers. To address the concerns raised by the article, the school has hired an as-yet-unidentified law firm to audit their sexual assault policies and convened a nine-member  “Alumni Review Committee” to “thoroughly examine our atmosphere, policies, practices, and experience in dealing with the kind of issues raised in that article.”

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Do Accused Students Have the Right to Legal Representation?
Posted by On Tuesday, April 15, 2014

While the final Rulemaking session on the Campus SaVE Act has ended, and the committee has reached a consensus on draft regulations, that consensus was reached far more easily for some parts of the regulations than for others. For example, when it came to the provision on disciplinary proceedings the committee didn’t have much trouble agreeing on the definition of an “advisor” as someone who provides “support, guidance, or advice” to the accuser or accused, and that schools would be required to:

(iii)  Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice …

However, when the discussion turned to the role these advisors could play there were “a few tense exchanges” between campus and student representatives regarding whether attorneys could represent students at the hearings. The committee finally agreed that schools could not limit the students’ choice of advisor but could limit the advisor’s participation in the proceedings, “as long as the restrictions apply equally to both parties …”

If this language makes it into the final regulations it may raise other issues that will need to be addressed. For example, North Carolina passed a first-of-its-kind law last year that gives students at public universities the right to have a lawyer present their case when they face disciplinary proceedings (other than a student honor court) for code of conduct violations other than academic dishonesty.

The North Carolina law, however, potentially conflicts with the draft federal regulations. Will federal law preempt state law if a university decides to limit the attorney’s participation? What happens when a student cannot afford legal representation? The draft regulations require that the accused and accuser must have the same opportunity to be represented by counsel of their choice. Does that mean the university must provide counsel to the accused or accuser if one of the parties cannot afford an attorney?

Another issue raised by the draft regulations is whether the school must advise accused students of their right to have an attorney present before being questioned during the school’s investigation. The draft definition of “proceeding” includes investigations as well as formal and informal meetings:

(iii) Proceeding means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, fact-finding investigations, formal or informal meetings, and hearings.

Therefore, it appears that this draft regulation requires both the accused and the accuser to be provided with the opportunity to have an attorney or other advisor present during questioning by school investigators, which goes beyond what is required in a criminal investigation.

Miranda warnings are required when a criminal suspect is in the custody of a sworn police officer. This protects someone who has either been arrested or is in a situation where they reasonably feel like they are not free to leave. Under these circumstances, suspects must be advised of their right to remain silent and to consult with an attorney before being interrogated.

However, if a student is being questioned by a campus authority who is not a sworn police officer, this is not a Miranda situation. This issue came up in a lawsuit against Denison University where the accused student claimed that the university violated his legal rights when Denison’s security director interrogated him without telling him that he had the right to have an attorney present. The student was expelled from the university after being found responsible for sexual assault. The lawsuit settled so we don’t know how the court would have decided this issue and it remains an open question.

While legal representation will increase the appearance of fair and impartial proceedings and increase students’ confidence in the process, it may also blur the lines between student conduct hearings and courts of law. Hopefully, the Department of Education will clarify the distinction between these two proceedings.

The draft regulations now go to the Office of Management and Budget for approval. The OMB’s approval is expected by the end of April, at which point the proposed regulations will be published in the Federal Register, followed by a 45-day public comment period. We’ll be following the process to the final regulations and keep you posted.

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What is a Prevention Program?
Posted by On Tuesday, April 1, 2014

The definition of “prevention program” is one of the most important issues being discussed at the last meeting (March 31-April 1st) of the Rulemaking committee that is drafting regulations to implement the Campus SaVE Act.

The latest draft regulations found on the Department of Education website define “programs that prevent dating violence, domestic violence, sexual assault, and stalking” as:

(1) Comprehensive, intentional, and integrated programming, initiatives, and strategies intended to stop domestic violence, dating violence, sexual assault, and stalking that–

(i) Are culturally relevant, inclusive of diverse communities and identities, sustainable, responsive to community needs, informed by research; and
(ii) Consider risk and protective factors as they occur on the individual, relationship, institutional, community and societal levels.

(2) Programs to prevent include both primary prevention programs directed at incoming students and new employees and ongoing prevention and awareness campaigns directed at students and employees . . ..

The American Association of University Women is live blogging the Rulemaking sessions, and reports that the discussion on this proposed definition includes questions about whether:

  • “stop” should include “strategies to prevent”
  • “informed by research” should be qualified by “where possible”
  • “ongoing programs” means “sustained over time”

As the negotiation session continues, schools are scrambling to put programs in place that qualify as a good faith effort to comply with these yet-to-be-defined terms. If current regulatory language (see §668.46(b)(11)(i)) becomes final, a school’s training efforts will need to be described in its Annual Security Report. However, regardless of what the final regulations look like the goal remains the same: schools must implement programs that are designed to eliminate campus sexual violence.

If all members of the negotiating committee agree on the proposed regulatory language, the next step will be to publish the draft regulations in the Federal Register, requesting public comments. If the committee members don’t agree, the ED will either use the draft language or draft their own for public comment. After consideration of the public comments, the ED will finalize the regulations.

We are continuing to follow the rulemaking proceedings and will keep you informed about any significant developments.

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A Glimpse at Campus SaVE Act Compliance
Posted by On Thursday, February 27, 2014

This week we got a glimpse at what full compliance with the Campus SaVE Act requires. In conjunction with a two-day session earlier this week, the Department of Education’s rulemaking committee produced a draft regulation (34 C.F.R. § 668.46). While this is not the final word, this draft provides insight into what we can expect to see in the final regulation.

As currently drafted, the regulation describes an education program that has two distinct parts: (1) a “primary prevention program,” as well as (2) an “awareness program.”

The primary prevention program is defined as:

[C]omprehensive, intentional, and integrated programming, initiatives, and strategies intended to stop domestic violence, dating violence, sexual assault, and stalking before they occur through the promotion of positive and healthy behaviors and beliefs.

The draft regulation says primary prevention programs include:

[E]fforts to change behavior and social norms, promote healthy relationships, promote healthy sexuality and egalitarian gender roles, promote an understanding of the risk factors and protective factors for bystander inaction, and change social norms around bystander inaction.

Based on the draft regulation, the prevention program should involve a multi-faceted strategy to create social norms that reinforce healthy behaviors and relationships, and change a rape-tolerant culture into a community of active bystanders who do something if they see someone in a risky situation.

The second required component of a compliant SaVE Act training is an awareness program described as:

[C]ommunity-wide or audience-specific programs, campaigns, or initiatives that increase audience knowledge and share information and resources to prevent violence, promote safety, and reduce perpetration.

Examples of awareness programs are:

[A]wareness month campaigns, speak outs, rallies, marches, informational poster campaigns, social media events, and resource Web sites.

These awareness programs reinforce material covered in the prevention program and keep the conversation going. Both of these programs should be ongoing for students and employees.

We expect the committee will produce a revised draft regulation for its third and final session on March 31 and April 1, 2014. We’ll follow the committee’s progress and keep you posted.

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