Live Blog Covers New Campus Sexual Assault Rules
Update April 2, 2014:
Jump down to the bottom to see the final update. Stakeholders have come to an agreement on a final draft rule to implement the Campus SaVE Act, also known as the VAWA amendments to the Clery Act.
A diverse committee of campus stakeholders met Monday, January 13, and Tuesday, January 14, to create regulations that will help schools implement the new campus safety provisions passed in the Violence Against Women Reauthorization Act. Once implemented, these regulations will create meaningful change on college campuses through greater transparency in reporting campus sexual assault, prevention programs for students, and better services for survivors.
AAUW was there for the two days of negotiations and reported live on our Tumblr. Negotiated rulemaking is a unique process, and the basic framework is that individuals representing schools, students, public safety officials, and other interested parties are chosen to meet and iron out the new rules. This is an alternative to having the Department of Education write regulations on its own. These two days in January focused on the big-picture issues that the regulations need to cover, and the group will continue to meet over the course of four days in February, March, and April.
Because of the diversity of the group, some points of contention came up during the conversation. Institutions and advocates seem at odds over the way to count and report crimes that fall into the main crime categories schools report (like aggravated assault or burglary), as well as in the new categories (like domestic violence and stalking). Some advocates and students are concerned that if incidents aren’t counted in both places, the new reporting will be meaningless. The good news for students and survivors is that the conversation did include important consideration of better training for school administrators, including public safety officials, to understand victim and trauma responses and to improve the fairness of school disciplinary proceedings. Having members of the panel with expertise in these areas is proving helpful to the conversation.
The committee will meet again February 24–25 and March 31–April 1. Members of the panel will likely see draft regulations ahead of the February meeting, and the conversations will center on editing the draft regulations. We will be back on AAUW’s live blog for those meetings; in the meantime you can catch up on the conversation.
Over the past two days, the Negotiated Rulemaking Committee met again to develop regulations to implement the new campus safety provisions from the Violence Against Women Act. These provisions focus on schools’ annual security reports, prevention activities, and disciplinary proceedings.
The committee planned six meetings this year to develop the regulations: two days in January, two days in February, and March 31–April 1. AAUW has been live-blogging the meetings as discussions unfold. If you’re looking for full text that the committee considered, check out the Department of Education (DOE)’s website, where a copy of the draft rule is posted, as well as resources the negotiators used this week.
The goal on Monday and Tuesday was for negotiators to talk through the entire draft rule — that means reviewing every topic that is a part of the new law. A few of the AAUW priorities that came up were
- Developing consistent definitions to be used by all schools, which was at times controversial. The law requires these definitions in some places (around domestic violence and dating violence, to name a few) but the DOE also proposed a definition of “consent” and tried to provide more detail around terms like “stalking.”
- Finding out what kinds of programming schools offer on campus. A major aspect of the new law is that schools will be disclosing what types of primary prevention and awareness programs they offer to all students and employees. Some components of what must be in those programs are in the new law, and the draft attempted to clarify those pieces. Negotiators had a tough time agreeing on this language. Many negotiators were interested in what covering “all” students and employees means. It sounds like there isn’t leeway to make the programs mandatory, especially in light of the different types of students covered by the law — including noncredit students, for example. But whatever is decided, the programs will have to reach all students.
- Requiring schools to report their crime data under some new definitions, updated by the FBI, as well as in new categories under the new law (dating violence, domestic violence, and stalking). DOE drafted charts for this reporting, and while many negotiators seemed willing to adapt to the drafts, they agreed to continue the conversation about exactly how they would work in the coming month, before the March 31 meeting. Reporting crimes is often framed as a burden for schools, and some negotiators suggested that they felt the additional information required under the new law was “double counting.” Many advocates and students disagreed.
- Schools will make their disciplinary proceedings more transparent to students, clearly outlining the steps, the people involved, and how the process will work. A sticking point came up during the conversation because DOE’s draft rule had mentioned the way other laws will interact with disciplinary proceedings described under the Clery Act — specifically the Family Educational Rights and Privacy Act (which protects student privacy) and Title IX (which would apply to many of the sexual violence and harassment incidents). These existing laws are unchanged by the new provisions, and the draft simply emphasizes and clarifies that point. Some negotiators worried about codifying guidance around Title IX. A bigger-picture point was made, though: The existing laws interact in other places beyond disciplinary proceedings. The group will certainly revisit this in March.
A note on the process: Negotiated rulemaking sets as a goal consensus. During the past two days there were several points where that goal seemed elusive, due in part to a divide within the committee — the institutional representatives come from schools that are general good actors whereas advocates and students bring the fears and concerns of working with bad actors. The DOE urged negotiators to stay positive and to work to iron out differences offline between now and March 31.
It’s hard to say if everyone will be able to approach the final sessions with cool heads and compromise on the brain; however, I’m hopeful. Everyone around the table wants to support students and create safe learning environments.
After three months of hard work, negotiators agreed by consensus to a proposed final draft rule to implement the VAWA amendments to the Clery Act (also known as Campus SaVE). This is a victory for improving campus safety — these regulations are necessary to implement the new provisions in VAWA. The six sessions haven’t been without disagreement. If you’ve been following the live blog, you know that divisions were deep at times and that consensus seemed potentially out of reach.
These were the takeaways from the final meetings:
- Students will be able to bring an advisor of their choice to proceedings. While there was a substantial amount of push-back from many negotiators, specifically those affiliated with private colleges and universities, the language in the regulation affirms that students (both the accuser and the accused) can bring any advisor (a lawyer, someone from outside the school community, a counselor) to proceedings that are part of the disciplinary process. Colleges and universities can only limit the role those advisors play — say, if they can speak for the student or not.
- Disciplinary proceedings will be much more transparent moving forward. Schools will outline how the proceedings will work and better notify both the accuser and the accused about meetings and the information being used during meetings.
- There will be a learning curve about counting and reporting dating violence and stalking (the documentation is new under the law). The definitions were well-debated, and it was clear that even with the best intentions some stakeholders will need some technical assistance on implementing these provisions. Good news: It’s happening, and the definitions are relatively strong.
AAUW is gratified that negotiators moved this draft rule forward — it will guide colleges and universities to provide prevention programming, clear policies, transparent disciplinary proceedings, and more comprehensive crime statistics. Students gain much from the implementation of the new law and these regulations. The programming and awareness activities that this law will spur have the potential to stem the tide of sexual assault, domestic violence, dating violence, and stalking on campus.
There will still be a public comment period on the rule, and AAUW will be weighing in. Stay tuned to our Action Network for ways you can be involved.