Colleges Face New Requirements in Proposed Rules on Campus Sexual Assault

June 20, 2014

Under rules proposed on Thursday by the U.S. Department of Education, colleges would have to train students and employees on preventing sexual assault, dating violence, domestic violence, and stalking. The proposed new rules would direct colleges to compile statistics for all incidents—a new requirement for the latter three categories—and to resolve students’ disciplinary cases promptly and fairly.

This latest federal move on campus sexual assault comes as colleges are grappling with their legal responsibility to investigate and respond to students’ reports of sexual violence, under pressure from activists and the White House. The Education Department is now investigating more than 60 colleges for possible violations of gender-equity law involving alleged sexual misconduct, and U.S. senators including Claire McCaskill, a Missouri Democrat, have signaled interest in legislation to improve colleges’ response to the issue.

The draft regulations—interpreting the Violence Against Women Act, which was renewed by Congress last year—would amend the campus-crime law known as the Clery Act. Among other provisions, they would allow students who report incidents and those accused of perpetrating them to have "an advisor of their choice," such as a lawyer, present during campus disciplinary proceedings. The rules define dating violence, domestic violence, and stalking, and include an updated, more inclusive definition of rape, from the Federal Bureau of Investigation. They also increase protections for the confidentiality of alleged victims and outline requirements for the "prevention programs" and "awareness campaigns" colleges must offer.

Set to be published in Friday’s Federal Register, the rules will be open for public comment until July 21. "Nothing in these proposed regulations," they say, "alters or changes an institution’s obligations or duties under Title IX," the federal gender-equity law that has become a focal point in combating campus sexual assault.

Timelines and Sanctions

While drafting the regulations this spring, federally appointed negotiators on a rule-making committee—including college administrators, public-safety officials, advocates for victims, and self-described survivors of sexual assault—brought a number of different perspectives to the table.

How the rules would be applied on campuses was on the minds of many negotiators, said Jill Dunlap, director of campus advocacy, resources, and education at the University of California at Santa Barbara, who served on the committee. "The best work we did," she said, "was providing some clarity for institutions."

Defining the new categories was a challenge because of the lack of existing federal guidance, said Rick Amweg, another negotiator and director of campus safety and security for the Ohio Board of Regents. "If you look broadly across all 50 states, those definitions are not the same," he said. For example, he pointed out, "not every state has a dating-violence statute." Discussions to define stalking lasted for weeks, said Ms. Dunlap.

To help colleges in responding to students’ reports, the rules set guidelines for investigating and resolving alleged incidents of sexual violence. For instance, colleges should ensure that officials handling such cases are "appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused" and that both parties "receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures."

The disciplinary process should be transparent, according to the draft regulations, with the "steps, anticipated timelines, and decision-making process" all spelled out. Colleges must also "list all of the possible sanctions" and "describe the range of protective measures" available to alleged victims, the proposed rules say.

Emphasis on Speed

The emphasis on prompt resolution is important, said S. Daniel Carter, a negotiator and director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, an advocacy group representing survivors and victims of the mass shooting at Virginia Tech in 2007. "I’ve seen cases go on for a year," he said, "and that’s not fair for either party."

The draft regulations do not specify a time frame in number of days.

Allowing lawyers in disciplinary hearings—a point of debate during the rule-making process—was a welcome development to some. "Hands down, the best thing that came out of it is no longer can schools refuse to allow a survivor to bring in an attorney," said Bridgette Harwood, negotiator and co-executive director of legal services at the Network for Victim Recovery of DC.

Advocates of alleged perpetrators’ due-process rights have also supported the presence of lawyers. During the negotiations, one call for such advisers came from Joshua Strange, a student who was expelled from Auburn University after being found responsible for sexual assault, but whom a grand jury declined to indict. "You have no idea—no idea—what kind of difference that can make," he said.

"The way the system was set up," he said of his campus process, "I was guilty automatically."

After some tense exchanges, negotiators agreed to keep the adviser provision in the proposed rules, with a slight modification. While colleges would not be allowed to limit a student’s choice of adviser, they could control the extent of that person’s participation in any proceedings—as long as the restrictions applied to both parties.

As for how colleges resolve cases, Nancy Chi Cantalupo, a negotiator and research fellow at the Victim Rights Law Center, was pleased to see the proposed rules call for explanation. "Schools will be required to state a rationale for both their decisions in student-disciplinary proceedings and for any sanction that they give the student found responsible for misconduct," she wrote in an email.

Debate Over Standard of Proof

In describing prevention programs, the rules do not require the use of specific materials. They direct colleges, meanwhile, to state prohibitions of sexual assault, dating violence, domestic violence, and stalking, and to define those terms, as well as "consent, in reference to sexual activity." Prevention programs, the rules say, must also include "a description of safe and positive options for bystander intervention; information on risk reduction; and information on the institution’s policies and procedures after a sex offense occurs."

Connie L. Best, a negotiator, clinical psychologist, and professor at the Medical University of South Carolina, was pleased with the rules’ outlines for educating students. "Prevention strategies have always been how a potential victim can stop a sex assault from happening," she said. She saw the new rules as putting equal emphasis on the behavior of potential perpetrators.

Some negotiators had hoped for a few more elements in the proposed rules, such as a reference to the standard of proof previously established by the Education Department. The agency has told campuses to determine responsibility in sexual-assault cases based on the preponderance of the evidence (i.e., more likely than not), a standard used in civil cases, as opposed to the higher standard of "beyond a reasonable doubt" required for a criminal conviction.

"I wish that ‘preponderance’ could have been included," Cat Riley, a negotiator and Title IX coordinator at the University of Texas Medical Branch, in Galveston, Tex., wrote in an email. "At least Title IX requires that standard," she said.

In introducing the proposed rules, the negotiators asked that the Education Department "include further clarification and guidance … in future documents" on the issue of consent. Whether and how colleges define that concept varies.

After the public-comment period on the proposed regulations ends next month, the department will work to make the new rules final. It expects to publish them by November. By then, there could be new federal legislation on campus sexual assault. Next week the Senate’s Health, Education, Labor, and Pensions Committee will hold a hearing on "the problem of sexual assault on college campuses," it said in a statement. The committee wants to discuss "ways that federal laws, including Title IX and the Clery Act, seek to hold schools accountable and help keep students safe."