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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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