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Consensus on Campus Safety Rules

April 2, 2014

WASHINGTON -- Colleges would be required to expand their reporting of campus crimes, publish more robust information about how disciplinary hearings work, and maintain sexual assault prevention programs under a proposal endorsed Tuesday by a U.S. Department of Education rulemaking panel.

A 15-member committee representing victims’ advocates, institutions, law enforcement, and other groups reached consensus on a draft of new campus safety rules that would implement the changes Congress made last year to the Clery Act as part of the reauthorization of the Violence Against Women Act.

The proposal adds domestic violence, dating violence, and stalking to the types of incidents that colleges must report and include in their annual crime statistics. It also includes national origin and gender identity as two new categories of hate crimes that must be reported.

A large part of the negotiations over the past several months centered on how the new incidents should be defined. Colleges would be required to report instances of domestic violence, dating violence and stalking even if the behavior isn’t considered a crime in the jurisdiction where they are located.

Several victims’ advocates on Tuesday lost a bid to include emotional or psychological abuse in the definition of dating violence along with sexual or physical abuse.  Education Department officials said they did not want to develop such an expansive definition.

In addition, the proposed regulation would require colleges to have ongoing programs and awareness campaigns aimed at preventing dating violence, domestic violence, sexual assault and stalking. Those programs would need to be tailored to the culture and needs of a campus and be based on research or assessed for effectiveness.

The proposal also features new requirements on how colleges must conduct campus disciplinary proceedings that involve domestic violence, dating violence, sexual assault, or stalking.

Congress mandated last year that such proceedings must be resolved in a “prompt, fair and impartial” manner. The draft rules would leave it up to institutions to determine what a reasonable time frame is, but would require institutions to have “good cause” to delay proceedings.

Under the proposal, both the alleged victim and accused person would have the right to select any person as an adviser. Colleges would be required to allow those advisers to be present at any meeting or hearing about the case, prohibiting the practice by some institutions to bar lawyers from attending proceedings, for instance.

The draft regulation approved Tuesday also scrapped a controversial effort by the Education Department to require campus sexual assault proceedings to adhere to guidance issued by the department’s Office for Civil Rights. In 2011, that office told colleges they must use a “preponderance of the evidence” standard for such proceedings, a lower threshold than the “clear and convincing” standard that many institutions had been using.

Some individual rights advocates, who oppose using the lower evidence standard, had derided the department’s proposal as a back-door way of codifying the “preponderance of the evidence” standard into law, which Congress had specifically declined to do. While guidance from the Office for Civil Rights is watched closely because it reflects the administration’s interpretation of the law, it is not binding on institutions.

Because the rulemaking committee achieved consensus on the draft on Tuesday, the Education Department is now required to push the committee’s draft through the regulatory process.

Gail McLarnon, who represented the department on the panel, said she expects to put the proposal out for public comment in the coming months and to meet the department’s November 1 deadline for publishing the final regulations. 

 

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