On July 14, 2014, the United States Department of Education issued a “Dear Colleague” letter reiterating its prior guidance to institutions for complying their Clery Act obligations under Campus SaVE Act provisions of the Violence Against Women Reauthorization Act of 2013 (“VAWA”). Institutional obligations under the new statutory provisions affect the Clery Act Annual Security Report that institutions must issue by October 1, 2014.
During early 2014, the Department engaged in a negotiated rulemaking process that culminated in consensus on a set of draft regulations, and the publication of proposed regulations for public comment on June 20, 2014. The Department has stated that it expects to publish final regulations by November 1, 2014, which would then become effective July 1, 2015.
Given the delay between the effective date of the new statutory requirements and the effective date of the new regulations, the Dear Colleague letter reiterates the Department’s expectation that, until the Department’s regulations are adopted in final form and become effective, institutions “must make a good-faith effort to comply with the statutory provisions as written.” The Department cautions that the proposed regulations may be modified in response to public comments and, accordingly, that reliance on the proposed regulations will not necessarily ensure compliance. In particular, the Department observed that “outside parties may be offering training to institutions on how to comply with the new requirements under the Clery Act. None of this training has been reviewed or endorsed by the Department and the Department is not bound by any statements made by these parties. Moreover, we also remind institutions that the proposed regulations … may be changed after we review the public comments. Therefore, training which relies on the proposed regulations may not fully capture what is required for compliance once the final regulations are effective.”
While the Department is correct that compliance with the proposed regulations does not guarantee compliance with VAWA’s Clery Act provisions, and it is understandable that the Department wishes to distance itself from the various training programs being offered by private parties (many of which adopt conflicting approaches and interpretations of the statutory requirements), the proposed regulations are certainly helpful in illustrating the Department’s current thinking as to the meaning of the statutory requirements. As a result, it is difficult to envision an institution being criticized for designing interim compliance measures based on the proposed regulations, albeit with the knowledge that the requirements may change, and thus institutional policies and procedures may correspondingly need to be modified, upon adoption of the final regulations. The key lies in ensuring that measures implemented now are indeed revisited to ensure conformity with the final version of the regulations, rather than being adopted and simply left “on the shelf.”