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Legal Developments: Addressing Campus Sexual Assault in 2016

Posted by On Friday, January 22, 2016

The level of legislative activity to address campus sexual assault in 2015 reflects the national concern surrounding this problem. And the intense focus on Title IX compliance and prevention programs now includes K-12 schools. These signs indicate that the law will continue to evolve with new strategies to address campus sexual violence in 2016.

This post contains a rundown of significant legal developments in 2015 and what to watch for in 2016 that may have direct and indirect implications for preventing and handling cases involving sexual and interpersonal violence committed against students. For a more detailed discussion of recent state laws, download our white paper.

OCR Investigations

At the end of 2015, 159 colleges and universities and 63 K-12 schools were under investigation by the U.S. Department of Education’s Office for Civil Rights. The Chronicle of Higher Education’s Title IX investigation tracker lists 243 investigations opened since the OCR’s 2011 Dear Colleague Letter. And the OCR’s 2016 budget was increased by $7 million for additional enforcement staff.

With a growing list of K-12 investigations, colleges and universities are not the only targets of Title IX complaints and OCR investigations. For example, Know Your IX, a non-profit organization founded by student survivor activists, provides a self-described “one-stop-shop, information-rich website” that has added a Title IX toolkit for high school students.

There is no question that the number of OCR investigations has grown since the OCR issued its 2011 Dear Colleague Letter, which Catherine Lhamon, Assistant Secretary of the OCR, told a Senate Committee is “an explanation of what Title IX means.”

Challenging the OCR’s investigatory authority, Senator James Lankford (R-Oklahoma), Chairman of the Subcommittee on Regulatory Affairs and Federal Management, last week sent a sharply worded letter to Acting Secretary of the U.S. Department of Education, John B. King, Jr. In his letter, Senator Lankford argues that the OCR guidance letters were not created through the notice-and-comment procedures required by the Administrative Procedure Act.

Therefore, Lankford requests “specific statutory and/or regulatory language that, in your view, the [2010 and 2011 Dear Colleague] letters interpret or construe . . . no later than February 4, 2016.” To the extent that they create compliance obligations beyond existing statutory or regulatory language, Lankford demands that “failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”

High School Prevention Programs

New federal and state laws acknowledge that prevention and awareness programs must start before students arrive on college and university campuses. On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (ESSA, S. 1177), which will start to take effect during this next school year. The ESSA allows public K-12 schools to use Title IV grant funds for training on safe relationship behavior, including affirmative consent and sexual assault prevention.

In addition, as of January 1, 2016, California public high schools must cover sexual and interpersonal violence and harassment awareness and prevention in their health education curricula.

In Michigan, both the House and the Senate have passed identical bills requiring public high schools to teach students affirmative consent standards. The bills have not yet been signed by the governor.

New Laws, Pending Bills, and ALI Guidelines

For higher education institutions, at least 29 state legislatures considered campus sexual assault legislation in 2015 (new state laws are discussed in our white paper), and the 114th Congress will continue its debate of four pending federal bills in 2016: the Campus Accountability and Safety Act (CASA), the Hold Accountable and Lend Transparency Campus Sexual Violence Act (HALT), the Safe Campus Act, and the Fair Campus Act. Each of these bills addresses how colleges and universities handle reports of sexual violence, and the co-sponsors of the CASA bill (turned into the “Senators of Steel” by Marvel) predict that its provisions will be included in the Higher Education Reauthorization Act when it comes up for a vote in 2016.

Recognizing this emerging maze of legislative solutions, the American Law Institute has assembled a team to help address the unique problems facing the higher education community in disciplinary proceedings. ALI describes its mission as “producing scholarly work to clarify, modernize, and otherwise improve the law.”

Members of the ALI team say they bring “a sense of expertise, professionalism, and balance to that kind of debate” and “can help take the politics out of a politicized issue.” The team includes college leaders, victim advocates, and legal experts, including an OCR lawyer. This project will create guidelines and best practices for addressing campus sexual assault to create a process that responds fairly and effectively to complaints. Suzanne Goldberg, a clinical professor of law and executive vice president for university life at Columbia University, and a primary author of the preliminary guidelines, says the ALI team is proceeding with “a sense of urgency.”

Meanwhile, state legislators grew impatient waiting for federal legislation, taking matters into their own hands. The recent NASPA report analyzed recent state action and identified four primary legislative policy themes:

  • defining affirmative consent
  • the role of local law enforcement
  • transcript notation
  • the role of legal counsel

For a list of important state legislative action in 2015 that will shape how campus sexual assault cases are handled in 2016 and beyond, download our white paper on new state laws and pending bills.

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