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Weekly Roundup
Posted by On Friday, July 25, 2014

Here’s the latest news about college sexual assault and prevention efforts from the last week.

Clery Act Fines Almost Always End Up Lower Than Proposed

An examination of the 21 Clery Act fines that have been imposed by the Department of Education on colleges and universities since 2000 shows that the fines universities actually pay are, almost invariably, lower than the amount initially proposed. Of the 21 fines, 17 ended up being lower than the amount initially proposed by the Education Department, with an average reduction of more than 25% and the Pittsburgh Technical Institute receiving the largest reduction of 50% of the proposed $110,000 fine, ultimately paying $55,000. While this trend may seem at first glance to be evidence that the Education Department is going easy on Clery Act violators, campus safety advocate Daniel Carter points out that the reductions are usually the result of settlements between schools and the government, which, like out-of-court settlements in the criminal justice system, typically benefit both parties. Carter suggests that a more important issue to be addressed is the need for more transparency in Clery Act investigations, which imposes the additional penalty of bad publicity.

Campus Sexual Violence Will Continue “Until There’s A Cost

Representatives from 64 colleges and universities, researchers, advocates, and federal officials were among the several hundred people gathered last week at Dartmouth College for the Dartmouth Summit on Sexual Assault.  Attendees included Lynn Rosenthal, the White House adviser on violence against women, who issued this challenge to the audience:  “It’s no small thing that you are undertaking . . . [but] if we get this right . . . we will have a cohort of college students who leave school knowing that sexual assault is unacceptable.”

Catherine Lhamon, assistant secretary for the Department of Education’s Office for Civil Rights, issued a warning to schools that do not comply with Title IX and Clery Act requirements to address campus sexual violence. She is willing to do what has never been done before to punish noncompliance — withhold federal funds.

David Lisak, a researcher and forensic consultant, helped organize the summit. Lisak is an expert on interpersonal violence and his research found that serial rapists are responsible for a large percentage of campus sexual assaults. Calling on higher education leadership to step up, Lisak said that campus officials “need to have budgets they can rely on to build comprehensive, multiyear programs.”

Laura Dunn, survivor and activist, recounted how two of her crew teammates raped her when she asked them to escort her from one party to another. She called on schools to remove perpetrators from campuses because, “Sexual violence will continue until there is a cost.”

25-Second Sexual Assault PSA

It only takes one shot and 25 seconds for this video to communicate an enormously important message about sexual assault and consent. As a bonus, it also provides a decent illustration of how to care for a friend who has had too much to drink.

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DCL: Good Faith Effort to Comply Required
Posted by On Tuesday, July 15, 2014

On Monday, July 14, 2014, the ED issued a Dear Colleague Letter because they “have received numerous inquiries from institutions asking us to clarify their responsibilities under the Clery Act, as amended by VAWA.” This guidance repeats ED statements from May 2013 with a bit more clarity: “until final regulations are published and effective, institutions must make a good-faith effort to comply with the statutory provisions as written.”

The ED’s guidance says good faith compliance with amendments to the Clery Act, which include the Campus SaVE Act, requires institutions to expand their policies to describe the procedures and programs that satisfy those new requirements. For example, the Campus SaVE Act requires each school to have a policy that describes the procedures that will be followed when a student reports a sexual assault incident and what standard of evidence will be used to decide an accused student’s responsibility for the assault.

Therefore, the ED will be looking for information in the policy statement submitted with a school’s October 2014 Annual Security Report that satisfies all of the requirements in the Campus SaVE Act, including a description of its prevention program.

(more…)

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Weekly Roundup
Posted by On Friday, July 11, 2014

U.S. Senator Claire McCaskill’s report on college sexual assault, released earlier this week and based on the results of a survey of 440 schools and three roundtable discussions, concluded that most colleges and universities simply aren’t doing enough to prevent sexual assault on their campuses. With that in mind, we want to use this week’s roundup to bring you three stories of measures schools and lawmakers are taking to address the sexual assault crisis.

Can Banning Grain Alcohol Stop Campus Sexual Assault?

In Maryland, lawmakers are following the lead of neighboring states Virginia, West Virginia, and Pennsylvania by banning the sale of 190-proof grain alcohols. Supporters of the ban, a group that includes state legislators and local college administrators, describe such liquors, which include the popular Everclear, as “a different category of alcohol” and “the worst of the grain alcohol.”

(more…)

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Golden State Auditor Issues Report
Posted by On Tuesday, July 1, 2014
Golden State Auditor Issues Report

You Are Invited to Comment on Proposed Regulations
Posted by On Monday, June 23, 2014

On Friday, June 20th — nearly fifteen months after the Violence Against Women Reauthorization Act of 2013 was signed into law — the Department of Education published the proposed regulations to implement the Campus SaVE Act and other amendments to the Clery Act in the Federal Register. Comments are due in 30 days — on July 21, 2014 — and the regulations are expected to become final around November 1, 2014, with an estimated effective date of July 1, 2015.

While the ED points out the VAWA amendments to the Clery Act do “not affect in any way” Title IX compliance, it should also be noted that the proposed regulations are not entirely consistent with Title IX requirements. For example, the standard of evidence used in disciplinary proceedings involving sexual assault must be disclosed in an institution’s Annual Security Report but the regulations do not specify what that standard of proof should be. The ED points out, however, that schools “can comply with Title IX and the Clery Act by using a preponderance of evidence standard.” In other words, if you use another standard you’ll violate Title IX (see the ED Office for Civil Rights’ significant guidance document Questions and Answers on Title IX and Sexual Violence), but nothing in the proposed regulations says you have to use the preponderance of evidence standard.

Under the proposed regulations, descriptions of these procedural requirements for disciplinary proceedings will also need to be included in the ASRs due on October 1, 2014:

  • the different types of investigations and hearings used for dating violence, domestic violence, sexual assault, and stalking cases
  • the steps, timelines, and decision-making process for each type of proceeding
  • how the school decides which type of proceeding to use in a particular case

Again, the proposed regulations don’t spell out what these procedural requirements should be, but schools should look to the OCR’s Q&A for guidance on these issues.

The rulemaking committee also debated whether the whole list of possible sanctions for accused students and protective measures for complainants should be disclosed in the school’s ASR. The argument for transparency won so that schools would be required to disclose an “exhaustive list of sanctions” against students found responsible for misconduct. Whereas schools would only be required to disclose a range of protective measures that could be used to protect a victim’s confidentiality, which preserves the school’s flexibility to address safety issues.

While the rulemaking committee reached consensus on these proposed regulations, the ED is especially interested in hearing ideas on how to resolve questions about reporting Clery crime statistics in the ASR like these:

  • where does a stalking incident end and another stalking incident begin?
  • how do you report a continuing stalking incident that spans more than one year or occurs on more than one campus?
  • should information about incidents of Clery crimes include information about the relationship between the perpetrator and victim?

While the regulations are fairly comprehensive, the ED intends to provide “further clarification and guidance” on issues not addressed in the regulations, such as consent, and to help schools better understand these regulatory requirements.

If you want to have a voice in shaping the rules on any issue covered in the proposed regulations, submit your “constructive, information-rich” comments before 11:59 ET on Monday, July 21, 2014, following these “Tips for Submitting Effective Comments“:

  • comment on issues that are of most concern to your institution
  • cite expertise, experience, or data that supports your position
  • offer constructive criticism or support on a particular rule
  • suggest an alternative approach and explain why it would be more effective
  • offer examples of negative or positive results from the proposed rule
  • provide quantitative or qualitative data on the economic effects of the rules
  • address opposing points of view

Comments can be submitted online and are available for public viewing on Regulations.gov.

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A Checklist for Title IX Employee Training
Posted by On Thursday, May 15, 2014
A Checklist for Title IX Employee Training

White House Task Force Tells Victims “You’re Not Alone”
Posted by On Friday, May 2, 2014

This week the Obama administration took unprecedented steps to address the problem of campus sexual violence. The First Report from the White House Task Force to Protect Students From Sexual Assault, titled “Not Alone,” echoes President Obama’s message to victims and survivors:

Perhaps most important, we need to keep saying to anyone out there who has ever been assaulted: you are not alone. We have your back. I’ve got your back.

On the same day the Task Force report came out, the Department of Education’s Office of Civil Rights issued a new set of guidelines for Title IX compliance. This week the OCR also released a list of 55 schools that are currently under investigation by the OCR for possible Title IX violations. This sends a strong message to colleges and universities across the country to make their compliance efforts a top priority.

This post will focus on the White House Task Force report. Besides acknowledging areas that require research and further study to determine what works, the Task Force report recommends the following best practices for schools to focus on:

  • Campus Climate Surveys: Developing a comprehensive prevention program is an ongoing process. To determine the unique needs of each campus and to measure a particular program’s success, schools need to gather data on the incidence of sexual assault occurring on their campuses and assess the campus climate among students, faculty, staff, and administrators. The Task Force recommends that schools administer an annual survey in the winter or spring to gather this information and provides guidelines for conducting the surveys. In 2016, the administration will explore legislative or administrative mandates requiring schools to conduct annual campus climate surveys.
  • Prevention programs: Given that evidence on effective campus sexual assault prevention methods is limited, the Centers for Disease Control will solicit research proposals in 2015 to inform sexual violence prevention efforts. Until then, the best practice is for campuses to provide continuing and universal prevention education for all students. Specific training requirements are found in the Campus SaVE Act education program requirements and the OCR’s “Questions and Answers on Title IX and Sexual Violence.”
  • Employee Training: The Task Force emphasizes that the first person a victim talks to should be able to provide a victim with information about available resources and services, how to access confidential support, and how to navigate the school’s disciplinary process. Identifying victim advocates who can provide confidential emergency and ongoing support for victims and survivors is deemed a “key best practice.”
  • Reporting and Confidentiality Policies: The Task Force acknowledges that responding to reports of sexual assault while maintaining a victim’s request for confidentiality is a difficult balancing act. However, it is critical that victims get the support they need and schools adequately respond to the situation. The purpose of the report’s suggested policy language is to make students aware of their options for reporting or making confidential disclosures of sexual violence. The Task Force also promises to provide additional sample language on “several challenging areas” by September 2014.
  • Sexual Misconduct Policies: While a school’s sexual misconduct policies must reflect “the unique aspects of the institution and its student body,” the Task Force provides a checklist of important considerations when drafting policies that effectively address prevention, reporting, and responding to sexual misconduct.

Key elements of the Task Force’s recommended victim-services plan are to either provide comprehensive trauma-informed services on campus or partner with community-based organizations to make crisis intervention services available 24 hours a day. In addition, when reports involve criminal investigations there needs to be communication, cooperation, and coordination among campus security, local law enforcement, and victim support groups to make investigations and adjudications more efficient while supporting the victim’s recovery.

Some schools are experimenting with new ideas for investigating and adjudicating sexual assault cases. The Justice Department’s Office on Violence Against Women will begin assessing different models and identifying promising practices in October 2014. Holding offenders accountable is another area where research is “desperately lacking.” The DOJ is now seeking grant applications under its Campus Assault Perpetrator Treatment Pilot Project to gather information on current campus sanctions for sexual assault perpetrators, and to develop and test sexual offender treatment programs.

Finally, the report announces a new website — www.notalone.gov — which provides data and resources for schools, victims, and survivors. For victims and survivors, the website explains how to file a complaint with the OCR and the DOJ against schools for Title IX violations. For schools, the website explains the reporting requirements of the Clery Act and Title IX in sexual assault cases, and how FERPA applies to those obligations. There is also a school-by-school enforcement map, providing links to resolution agreements and court filings addressing Title IX and Clery Act compliance investigations.

If that wasn’t enough information to process, in future posts we’ll help you understand the OCR’s new guidelines and how to put together a prevention program that addresses both the requirements of the Task Force’s best practices and the OCR’s guidelines.

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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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Counting New Crime Statistics
Posted by On Tuesday, March 25, 2014

In the Fall of 1962, President Kennedy sent U.S. Marshals to the University of Mississippi to protect James Meredith, the first African-American student to matriculate at “Ole Miss,” as he faced a riot aimed at stopping him from entering the Oxford campus. Today, nearly a quarter of the university’s students are minorities and a statue of Meredith has been erected as a symbol of the university’s progress.

Sometime during the early morning hours of February 16, 2014, Meredith’s statue was defaced. A noose was tied around its neck and a Georgia state flag with the Confederate battle symbol was draped over its face. Three freshmen were implicated and expelled from their fraternity, while the university is proceeding with disciplinary action. In addition, the FBI is investigating the incident to determine if this was a hate crime intended to intimidate African Americans.

Racially motivated hate crimes are not confined to southern states.  At San Jose State University in California, an African-American freshman was subjected to “disturbing racial indignities” by his white roommates, including fastening a bicycle lock around his neck and displaying the Confederate flag in their dorm room. The victim has filed a $5 million claim against the university, alleging that the dormitory adviser ignored warning signs of a potentially dangerous situation, and four of the roommates have been charged with hate crimes and battery.

Both cases remind us not only that ugly prejudices still exist on today’s college campuses but also that hate crimes such as these are covered by the Clery Act’s reporting requirements. The Clery Act requires every postsecondary school that participates in federal student aid programs to prepare an Annual Security Report that is made available to enrolled and prospective students. These reports provide information about campus safety so that students and their families can make informed decisions about where to pursue higher education. The “Clery crimes” that must be reported range from murder and sexual assault to auto theft and arson.

Effective October 1, 2013, the Violence Against Women Reauthorization Act of 2013 amended the Clery Act reporting requirements. Prior to October 1, 2013, the Clery Act defined hate crimes as those that involved prejudice based on race, gender, religion, sexual orientation, ethnicity, and disability. Starting with the Annual Security Reports due on October 1, 2014, hate crime statistics include two additional types of prejudice: national origin and gender identity.

Hate crime statistics also include these crimes which are not reported under other categories: intimidation, larceny-theft, simple assault, and crimes involving property damage and personal injury. It should be noted that the VAWA of 2013 added these new Clery crimes, which would also be reported as hate crimes if they were motivated by prejudice: sexual assault, domestic violence, dating violence, and stalking.

The new reporting requirements are raising questions about how to count these crimes, and the Department of Education’s Rulemaking Committee is working on regulations to explain compliance, addressing issues such as how to:

  • define the new crimes
  • count and disclose statistics for these offenses

One of the subcommittees has posted Issue Paper #1, which describes the current discussion around how to define new offenses. For example, it is unclear what definition of sexual assault should be used since the FBI’s definition of sex offenses has changed but the 2013 VAWA amendments didn’t reflect those changes.

One important question addressed by Issue Paper #2 is how to count a single reported incident that falls into multiple categories. Examples of how hypothetical incidents might be counted under different interpretations of the VAWA amendments were submitted by one of the negotiators on the Rulemaking Committee to illustrate the problem.

Counting stalking incidents has also raised questions, including: does the course of conduct count as multiple stalking incidents or one incident, and how do you determine where the crime occurred?

On May 29, 2013, the Department of Education issued a memorandum, stating that:

[F]inal regulations to implement the statutory changes to the Clery Act will not be effective until after the Department completes the rulemaking process … The Department expects that institutions will exercise their best efforts to include statistics for the new crime categories for calendar year 2013 in the Annual Security Report due in October of 2014.

The January 2014 White House Report on Rape and Sexual Assault told us that “the Department of Education is engaging in negotiated rule-making with the goal of publishing a final rule by November 2014.”

In the meantime, schools will need to make their best effort at compliance until these questions are answered. We’ll follow the rulemaking proceedings and pass along information as it becomes available, trying to shed light on what constitutes “best efforts” to report these new crime statistics.

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