ED Approves Draft Rules for VAWA Amendments to Clery Act


The U.S. Department of Education (ED) is currently in the midst of devising new regulations for colleges to broaden their reporting of campus crimes, as part of last year's reauthorization of the Violence Against Women Act (VAWA), including the new Campus Sexual Violence Elimination Act (SaVE Act).

ED recently approved a set of proposed campus safety rules drafted by a 15-member committee representing victims’ advocates, institutions, law enforcement and other groups.

The draft rules would require institutions to expand their campus-crimes reporting, and publish more in-depth information regarding the disciplinary process and implementation of sexual-assault-prevention programs.

As mandated by the SaVE Act, the proposal adds domestic violence, dating violence and stalking to the categories of incidents that colleges must report and include in their annual crime statistics — even if such behavior is not considered a crime in their jurisdiction.

Two new categories of hate crimes — national-origin violence and gender-identity violence — must also be reported.

The proposed regulation would require colleges and universities to carry out ongoing awareness and prevention programs for dating violence, domestic violence, sexual assault and stalking. Such programs would be customized according to the needs of a campus and based on research or assessed for effectiveness.

The SaVE Act also mandates that campus disciplinary proceedings involving domestic violence, dating violence, sexual assault or stalking be resolved in a "prompt, fair and impartial" manner. The proposed regulations let the institutions determine what they consider to be a reasonable time frame, but would require "good cause" for any delayed proceedings. The proposal would also allow both the alleged victim and the accused to select any person as an advisor in their case. Institutions would be required to allow such advisors to be present at any meeting or hearing regarding the case. This would effectively prohibit the practice by some institutions of barring lawyers from attending such proceedings.

With respect to evidentiary standards, ED failed in its controversial effort to require that campus sexual-assault proceedings adhere to a "preponderance of the evidence" standard found in guidance previously issued by its Office for Civil Rights. Institutions therefore remain free to continue their use of a lower "clear and convincing" evidentiary standard many have been using.

ED expects to put the proposal out for public comment within the next few months in an effort to complete the regulatory process by the November 1, 2014 deadline for publishing the final regulations.

Colleges and universities can prepare for these new campus-security regulations by reviewing their applicable policies and training programs to ensure all relevant campus parties understand their respective responsibilities.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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