Guidance Regarding Compliance with Changes to Clery Act Made by VAWA Before Final Regulations Become Effective

by Franczek Radelet P.C.

Earlier this week, the U.S. Department of Education’s Office of Postsecondary Education (DOE) released guidance designed to assist institutions of higher education in determining how to comply with the Violence Against Women Reauthorization Act of 2013 (VAWA) in relation to the Annual Security Report (ASR) that must be provided to students, employees, and prospective students by October 1, 2014.  This is an issue that colleges and universities are confronting because proposed VAWA regulations have been announced but are not scheduled to become final until November 1, 2014, after this year’s ASR is due.  For additional information about VAWA, please see our firm’s previous Alerts on this subject.

As a preliminary matter, this week’s guidance from DOE confirms that an institution’s obligations under VAWA are separate and distinct from their obligations under Title IX of the Education Amendments of 1972.  As the guidance states, “Nothing in the Clery Act, as amended by VAWA, alerts or changes an institution’s obligations or duties under Title IX as interpreted by OCR.”  (Our recent Alert regarding the federal government’s extensive recent guidance relating to Title IX can be found here.)

The DOE guidance goes on to provide additional information about how institutions can demonstrate good faith efforts to comply with the VAWA statutory requirements until the VAWA regulations become final, as referenced in the DOE’s May 29, 2013 guidance regarding VAWA.  More specifically, this week’s guidance provides as follows:

  • Institutions are expected to revise their policy statements to include the procedures that they will follow once an incident of domestic violence, dating violence, sexual assault, or stalking has been reported, including a statement of the standard of evidence that will be used during any institutional conduct proceeding arising from such a report.  (We note that, although VAWA does not specify a particular standard of evidence that must be used, the Office for Civil Rights has made it clear that institutions must use a “preponderance of the evidence” (i.e., more likely than not) standard in cases involving allegations of sexual assault.)
  • Institutions are expected to expand their existing policy statements to include information about how the institution will facilitate changes in a complainant’s or alleged victim’s transportation and working situations, in addition to their academic and living situations, if the complainant or alleged victim requests such changes.
  • Institutions must make a good-faith effort to include statistics for new crime categories of domestic violence, dating violence, and stalking for calendar year 2013 in the ASR that is due in October of this year and also make a good-faith effort to ensure that the statistics for these new crime categories are accurate and complete.  The guidance acknowledges, however, that institutions may not have complete statistics for 2013 and that institutions are not expected to report these new crimes to the DOE in the “Web-based data collection” until the data collection period in Fall 2015.

With regard to training, the guidance notes that “outside parties” may be offering training about how to comply with the new requirements under the Clery Act and emphasizes that none of this training has been reviewed or endorsed by the DOE.  The guidance reminds institutions that the proposed regulations may be changed following the public comment period and cautions institutions that information in any training which relies upon information in the proposed regulations “may not fully capture what is required for compliance once the final regulations are effective.”

The DOE’s guidance from earlier this week serves as another reminder of the importance of making good-faith efforts to comply with the requirements set forth in the VAWA statute in connection with this year’s ASR and any related policy statements, while also keeping in mind that additional requirements are likely to be added once the VAWA regulations become final.

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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