Katrina Chapman is an Associate, and Paul Lannon Jr. and Miriam McKendall are Partners in Holland & Knight's Boston office.
HIGHLIGHTS:
- The U.S. Department of Education (DOE) published final regulations implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), including the Campus Sexual Violence Act (Campus SaVE), on Oct. 20, 2014.
- While the regulations do not take effect until July 1, 2015, the VAWA statutory provisions already are in effect, and there are many steps that institutions should take now to ensure legal compliance.
The U.S. Department of Education (DOE) published final regulations implementing the Violence Against Women Reauthorization Act of 2013 (VAWA), including the Campus Sexual Violence Act (Campus SaVE). The regulations were released on Oct. 20, 2014, and take effect on July 1, 2015, but the VAWA statutory provisions are in effect now – the DOE expects institutions to make a good faith effort to comply with the new requirements. (See Holland & Knight alert, " New Campus Security Laws Take Effect This Month,"March 10, 2014.)
This alert provides an overview of the final regulations, including changes between the draft regulations and the final regulations, and suggests measures that institutions of higher education should take now to comply.
Overview of the VAWA Regulations
After multiple committee meetings to address the changes VAWA made to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), the DOE published draft regulations on June 20, 2014. Approximately 2,200 parties submitted comments to the draft, and several thousand individuals expressed support for comments submitted by the American Association of University Women. After considering the comments, the DOE made some significant changes (enumerated below) but opted not to change any of the core provisions of the draft regulations.
The final regulations codify VAWA's requirements to:
- maintain and report statistics about incidents of dating violence, domestic violence, sexual assault and stalking
- add gender identity and national origin to the hate crime categories that must be reported
- adopt specific student discipline procedures for responding to complaints of dating violence, domestic violence, sexual assault and stalking
- adopt institutional policies and training programs with mandated content to educate students and employees about sexual violence
In addition, the DOE's introduction in the Federal Register summarizing the final regulations expands upon its interpretation of the regulations' requirements. For example, the DOE clarifies that it interprets the regulations to permit institutions to restrict the role of an advisor who accompanies a student to a disciplinary or related proceeding by prohibiting the advisor from speaking at proceedings, addressing a disciplinary tribunal, or questioning witnesses.
DOE Changes the Final VAWA Regulations
The DOE summarizes its changes to the VAWA regulations to include the following:
Resources for Victims
- Add student financial aid to the list of services about which institutions must alert victims of alleged dating violence, domestic violence, sexual assault, or stalking
- Specify that institutions must notify victims of alleged dating violence, domestic violence, sexual assault, or stalking regarding how to request changes to academic, living, transportation and working situations, and also how to request protective measures
Disciplinary Procedures
- Specify that an institution's policy must address the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault and stalking
- Redefine "proceeding" in the context of a proceeding to resolve complaints of alleged dating violence, domestic violence, sexual assault, or stalking, to exclude communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim
Annual Security Report
- Require institutions to provide information in the annual security report on how victims of alleged dating violence, domestic violence, sexual assault, or stalking may file a disciplinary complaint
- Clarify that, in rare cases, an institution may remove from its crime statistics reports of crimes that have been "unfounded" and specify the requirements to "unfound" a reported crime
- Require institutions to report to the DOE and disclose in their annual security report the number of crime reports that were "unfounded" and subsequently withheld from their crime statistics during each of the three most recent calendar years
- Clarify that an institution must include all reports of Clery Act crimes that occurred on or within the institution's Clery geography
- Require institutions to report statistics for referrals (in addition to arrests) for disciplinary action for liquor law violations, drug law violations and illegal weapons possession
- Clarify how the definitions in the FBI's Uniform Crime Reporting (UCR) Program apply to an institution's compilation of crime statistics in compliance with the Clery Act; update references to the FBI's UCR Program materials; revise the exception to the Hierarchy Rule (which governs how crimes are reported in the annual security report) to clarify that it applies in cases where a sex offense and a murder occur during the same incident; and confirm that arson must always be included in campus crime statistics
- Clarify that stalking crossing calendar years must be recorded in each year in which the stalking is reported to a campus security authority or local policy
- Remove a proposed requirement that institutions record a report of stalking as a new and distinct crime when the stalking behavior continues after an official intervention
Practical Steps to Take Now
Institutions should review the final regulations now and evaluate how to make a good faith effort to comply before the regulations take effect on July 15, 2015. Compliance efforts should include the following:
- Prevention and Awareness Programs. Review and update existing programs for incoming students and new employees addressing prevention and awareness of campus violence for compliance with the regulations. The programs should define "consent" in reference to sexual activity, describe safe and positive options for bystander intervention, provide information on how to reduce risks, and explain what policies and procedures after a sex offense occurs. Develop and implement ongoing prevention and awareness programs that comply with the regulations.
- Disciplinary Proceedings. Evaluate and modify applicable student and employee disciplinary proceedings to resolve complaints of alleged dating violence, domestic violence, sexual assault and stalking in compliance with the regulations.
- Crime Statistics. Collect and document statistics on dating violence, domestic violence, sexual assault and stalking in compliance with the definitions of those terms in the regulations.
- Annual Security Report. Begin incorporating the changes to annual security reporting to ensure that the institution's Annual Security Report submitted on Oct. 1, 2015, complies with the revised regulations.
VAWA Statutory Provisions Are Currently in Effect
The final VAWA regulations impose several important changes on how institutions should address campus violence. While the regulations do not take effect until July 1, 2015, the VAWA statutory provisions already are in effect, and there are many steps that institutions should take now to ensure legal compliance. When considering what specific changes to make in their current policies and procedures, institutions should seek guidance from campus security, student affairs, Title IX coordinators, human resources, health services and legal counsel with experience in this area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
