Comment from FIRE on Proposed Regulations to Implement Changes Made to the Clery Act by the Violence Against Women Reauthorization Act of 2013

By July 21, 2014

Background

The Foundation for Individual Rights in Education (FIRE; thefire.org) is a nonpartisan, nonprofit organization dedicated to defending student and faculty rights on America’s college and university campuses. These rights include freedom of speech, freedom of assembly, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity.

As we explained in our Comment to the White House Task Force to Protect Students from Sexual Assault, due process rights are one of FIRE’s core concerns. While there is no doubt that institutions of higher education are both legally and morally obligated to effectively respond to known instances of sexual assault, public institutions are also required by the Constitution to provide meaningful due process to the accused. Goss v. Lopez, 419 U.S. 565, 584 (1975); Dixon v. Alabama State Board of Education, 294 F.2d 150, 157–59 (5th Cir. 1961). FIRE has long maintained that these two responsibilities need not be in tension.

Access to higher education is critical—especially in today’s economy, where a college degree is so often a requirement for career advancement. Given the high stakes for both accuser and accused in a campus sexual assault adjudication, neither student’s educational opportunities should be cut short unjustly. Just as it is morally wrong and unlawful for a college to sweep allegations of sexual assault under the carpet, it is inexcusable both ethically and legally to expel an accused student after a hearing that provides inadequate procedural safeguards. As recent news reports have demonstrated all too well, both of these regrettable outcomes occur at campuses across the country with alarming frequency. To date, however, the political focus on addressing sexual assaults on campus has been disappointingly one-sided, focusing almost exclusively on the rights of complainants while paying insufficient attention to the rights of the accused.

Because the goal of combating sexual assaults on campus is of such crucial importance, FIRE was pleased that the Department of Education (the Department) initiated formal negotiated rulemaking to arrive at the proposed regulations at issue. FIRE attended each of the negotiated rulemaking sessions and provided verbal input at two of those sessions during the public comment periods. (Indeed, because of the readily apparent utility of this open process, FIRE strongly believes the Department should have also engaged in negotiated rulemaking and provided for a public notice-and-comment period before announcing the binding new mandates contained in the Office for Civil Rights’ April 4, 2011 “Dear Colleague” letter.) Our praise for the transparency of the negotiated rulemaking process is tempered, however, by the fact that the diverse stakeholders invited to participate failed to include even a single advocate on behalf of student and faculty due process or civil liberties.

The negative impact of this disappointing omission was exacerbated by participants who attempted to discuss issues beyond the narrow scope of the negotiations as announced. Following numerous suggestions regarding the topics that the negotiated rulemaking should address, the Department of Education announced the parameters of the rulemaking in a notice published in the Federal Register on September 19, 2013:

[W]e have decided to establish an additional negotiating committee to prepare proposed regulations to address changes made by VAWA to the campus safety and security reporting requirements in the Clery Act. In addition we may propose additional changes to clarify and update the existing campus safety and security reporting requirements.

Contrary to the limited scope of this notice, negotiators attempted to expand their reach by addressing issues relating to campus discipline that could not fairly be categorized as campus safety and reporting requirements. For example, multiple negotiators raised the possibility of mandating the use of our judiciary’s lowest evidentiary threshold, the “preponderance of the evidence” standard, despite the fact that legislative language that would have done so was intentionally removed by lawmakers before passing the Violence Against Women Reauthorization Act of 2013 (VAWA).[1] Similarly, prior drafts of the proposed regulations included a provision that would have mandated compliance with any current or future guidance documents from the Office for Civil Rights (OCR­). Because OCR’s 2011 “Dear Colleague” letter mandates the use of the “preponderance of the evidence” standard, the early draft regulations would have effectively codified the use of the preponderance of the evidence standard in campus hearings, despite such a requirement having been considered and rejected by Congress.

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FIRE observed the rulemaking process to ensure that the resulting regulations did not erode due process rights for the accused or contradict the statute itself. Had FIRE been allowed to formally participate, such a result could have been precluded. We raise these concerns now because we wish to remind the Department that the final regulations that result from this open comment period, including any amendments to the negotiated rule as currently proposed, must stay true to the scope of the notice issued on September 19, 2013.

Specifically, we remind the Department that the provisions that sought to codify the preponderance of the evidence standard were deleted before the publishing of the proposed regulations for official public comment, and those provisions must stay out of the final version. We also note that both the Department and the rulemakers intentionally declined to mandate definitions of consent that undermine due process protections, such as so-called “affirmative consent,” which effectively shifts the burden of proof onto the accused student. Similarly, the Department and the rulemakers deliberately declined to adopt definitions of most specific offenses, recognizing that doing so would contradict the legislation’s unambiguous directive that institutions adopt definitions used in their local jurisdictions and definitions from the Federal Bureau of Investigation’s Uniform Crime Reporting Summary Reporting System, depending on the definition’s purpose. FIRE strongly supported the deletion of those provisions from the proposed regulations, and we ask that the Department ensure they are not reintroduced in the final version.

Access to Counsel

Because colleges and universities operate what amounts to their own parallel justice systems while failing to provide the meaningful due process protections guaranteed in our nation’s courts, FIRE strongly believes that students facing serious, non-academic disciplinary charges—including sexual assault charges—must be afforded the right to be represented by an attorney or other advocate of the student’s choosing in a campus hearing.[2] Because of the seriousness of the charges and the well-documented failures of colleges and universities nationwide in handling sexual assault allegations, the right to be represented by counsel should also be extended to student complainants.

With regard to access to counsel in disciplinary hearings, the proposed regulations state that campus policies must:

(iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice;

(iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties[.]

The text of the legislation requires university policies to provide that:

The accuser and the accused are entitled to the same opportunities to have others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice[.]

The statutory language makes clear that both the accuser and the accused may choose any advisor—including an attorney—to accompany them and be present at any disciplinary proceeding or related meeting. Per the statute, institutions may not prohibit students from selecting attorneys as representatives. The regulation closely tracks the statute in this respect, and FIRE appreciates the Department’s clear implementation here as an important step towards protecting the rights of both parties and the integrity of the proceedings.

However, the statute is silent as to whether institutions may restrict or limit these advisors in the proceedings. It certainly does not empower institutions to limit the roles of advisors to that of passive observers, barred from participating on the student’s behalf. This is a distinction with a difference. By empowering institutions to “establish restrictions regarding the extent to which the advisor may participate in the proceedings,” the regulation, as currently written, misstates the statutory language to limit students’ rights. Worryingly, the proposed regulation also incorrectly suggests that state laws providing students with a meaningful right to counsel in disciplinary hearings, like North Carolina’s Student and Administration Equality Act, are inconsistent with VAWA. Institutions seeking to limit the role of counsel will cite the regulations as the legal authority to do so. This result is incorrect, and the proposed language must be amended in the final version.

To better serve the interests of all students, and to make clear that VAWA is silent with regard to limitations on the ability of counsel to participate on behalf of either party in disciplinary proceedings, a more accurate implementing regulation would state that institutions must:

(iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, nothing in these regulations or the statutory language prevents the institution from establishing, or empowers the institution to establish, restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties[.]

This change is small but necessary to ensure that the legislation is implemented as intended, providing both parties with access to counsel in disciplinary proceedings and all related meetings without negating state laws that require institutions to allow those attorneys to participate in the process.

III.     Stalking

FIRE is deeply concerned by the regulations’ overly broad, vague definition of “stalking.” As presently composed, the definition threatens student and faculty First Amendment rights and departs significantly from the definition set forth by VAWA.

Section 107 of VAWA reads:

Stalking.—

Section 2261A of title 18, United States Code, is amended to read as follows:

Sec. 2261A. Stalking

Whoever—

(1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that—

(A) places that person in reasonable fear of the death of, or serious bodily injury to—

(i) that person;

(ii) an immediate family member (as defined in section 115) of that person; or

(iii) a spouse or intimate partner of that person; or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that—

(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A), shall be punished as provided in section 2261(b) of this title.

In direct contrast, the proposed regulations define stalking as:

(1) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to-–

(i) Fear for the person’s safety or the safety of others; or

(ii) Suffer substantial emotional distress.

(2) For the purpose of this definition–

(i) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.

(ii) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

(iii) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

Regulations must not contradict the statutes they are implementing. This proposed regulation, however, diverges from VAWA by defining a broad range of actions and speech that are not prohibited by § 2261A as stalking. Section 2261A prohibits actions committed with a criminal intent—specifically, the intent to kill, injure, harass, or intimidate. In contrast, the proposed regulation defines stalking as conduct and speech that merely has the effect of causing substantial emotional distress. For example, under the proposed regulation, two or more acts of a party communicating to or about a person in a way that would cause a reasonable person to suffer substantial emotional distress would constitute stalking. It does not include a requirement that the party have an “intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person,” or even a requirement that the party have an intent to cause substantial emotional distress.

Moreover, the stalking definition in this proposed regulation is likely unconstitutional. § 2261A has been ruled unconstitutional as applied under circumstances to which the proposed regulation would apply. In United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011), a federal district court found § 2261A(2) unconstitutional as applied to online speech criticizing a religious leader. In doing so, the court emphasized that much of the “type of expression that the Supreme Court has consistently tried to protect” is “vehement, caustic, and sometimes unpleasantly sharp.” Id. at 586 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Indeed, speech that exposes an individual to embarrassing truths or harsh criticism may cause some level of “mental suffering or anguish,” but much expression of this type is protected by the First Amendment.

The district court noted that the defendant’s speech fell outside the traditionally unprotected categories of speech, and the indictment did not contain an allegation that the speech constituted a true threat. Instead, the court noted, application of the statute to the defendant constituted a content-based restriction on speech because it criminalized speech based on its emotional impact on another party. As the Supreme Court noted in United States v. Playboy Entertainment Group, 529 U.S. 803, 813 (2000), “Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists.” The proposed regulation similarly targets speech that does not fall into any of the traditionally unprotected categories of speech, but instead has an emotional impact on another party. Without more, this emotional impact is not sufficient justification to punish speech. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995) (observing that “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”).

Classifying speech that has this emotional impact as “stalking” without requiring intent on the part of the speaker to cause that harm runs afoul of the First Amendment. Federal courts that have found § 2261A constitutional have relied on an intent requirement not present in the proposed regulation. For example, the United States District Court for the District of Arizona found in United States v. Shepard, 2012 U.S. Dist. LEXIS 4623, *25 (D. Ariz. Jan. 13, 2012) (emphasis added) that “[a]lthough [the defendant] argues that a person’s First Amendment rights may be infringed because that person may refrain from expressing an idea or innocuous thought because of the alleged vagueness, it is a defendant’s intent to kill, injure, or harass, etc. that precludes 18 U.S.C. § 2261A from infringing on First Amendment rights when a person expresses him or herself without the intent proscribed by the statute.” Because there is no such intent requirement in the proposed regulation, would-be speakers must choose between expressing themselves freely and risking punishment if their speech reasonably causes severe emotional distress, regardless of the nature of the speech or the speaker’s intent. The proposed regulation, therefore, is likely unconstitutionally overbroad and vague and would create an impermissible chilling effect on constitutionally protected speech.

Similarly, in United States v. Stewart, 2000 U.S. App. LEXIS 41080 (5th Cir. 2000), the United States Court of Appeals for the Fifth Circuit held that § 2261A was not unconstitutionally vague because it requires that the perpetrator “place [a] person in reasonable fear of death or serious bodily harm to himself or to a member of his immediate family.” The court noted that “[t]he legislative history confirms that it was Congress’ intention to protect persons from such fear and not from less severe harassments that do not cause fear for life or personal safety.” Id. at *28. The Fifth Circuit continued:

This construction is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a possibly broad range of conduct not normally considered criminally reprehensible. A strict reading of § 2261A with no limitation on the term “harass” and no requirement that the offender commit an act with present knowledge that it was practically certain to place the victim in fear of death or serious harm would thus make a felon of a person who, for example, crossed a state line knowing he thereafter would engage in conduct to annoy a particular person but ended up doing something accidentally and unintentionally that placed that person in fear of death or serious harm. Given the language and legislative history of § 2261A, however, such a sweeping interpretation of the statute is not justified.

Id. at *31–32. Because the proposed regulation lacks the intent requirement that the Fifth Circuit cited in upholding the constitutionality of § 2261A, these negative ramifications will manifest and will result in the punishment or chilling of speech protected under the First Amendment.[3]

Defining stalking carefully and consistently with the First Amendment is critically important. The Department must not promulgate the definition of stalking provided in these proposed regulations. Instead, the Department may use the definition provided in VAWA, a close analogue of which has survived judicial scrutiny and has been approved by Congress in the very statute these proposed regulations seek to implement.

Conclusion

Sexual assault is one of the most heinous crimes a person can commit, and those found guilty of it should be punished to the fullest extent allowed by law. But precisely because sexual assault is such a serious crime, ensuring that each case is referred to law enforcement and providing those accused with due process is absolutely vital. As FIRE President Greg Lukianoff has observed: “Due process is more than a system for protecting the rights of the accused; it’s a set of procedures intended to ensure that findings of guilt or innocence are accurate, fair, and reliable.”

FIRE is under no illusion that there is a simple solution to the problem of sexual assault on campus. But by lowering the bar for finding guilt, eliminating essential due process protections, and entrusting unqualified campus employees and sometimes even fellow students to safeguard the interests of all involved in adjudicating allegations of misconduct that would also constitute felonies, we are creating a system that is impossible for colleges to fairly administer.

If campuses are to continue adjudicating sexual assault allegations, ensuring that students are permitted to have the active assistance of counsel is a crucial step towards eliminating the potential for unjust outcomes. The proposed regulations must be amended to ensure that they are not a barrier to providing students the right to the assistance of the advisor of their choice. The Department must also be careful to define the term “stalking” in a manner that complies with the First Amendment. Doing so is not optional. The definition of stalking in the proposed regulations fails to meet this test and must be revised.

With the changes proposed here, the final regulations have the potential to be an important step towards providing the procedural safeguards necessary to effectively and fairly combat sexual assault on campus. We hope these changes are made and that the regulations bring us closer to addressing this issue responsibly.

[1] Congress also removed language that required universities to “provide a prompt and equitable investigation and resolution” in adjudicating sexual assault allegations, replacing it with a requirement that proceedings be “prompt, fair, and impartial.” This change was made because in the 2011 “Dear Colleague” letter, the Department of Education claimed (erroneously, FIRE believes) that Title IX’s implementing regulations, which require the “prompt and equitable resolution” of complaints, demand the use of the preponderance standard that Congress sought to avoid mandating.

Congress was wise to decline to mandate use of the preponderance of the evidence standard. Without the basic procedural protections found in civil court—rules of evidence, discovery, legally trained advocates, the right to cross-examine witnesses, and more—campus tribunals that use the preponderance of the evidence standard reach life-altering findings using an evidentiary threshold that amounts to little more than a hunch. This practice is not just unfair to the accused; it reduces the accuracy and reliability of the findings and compromises the integrity of the system as a whole.

[2] See, e.g., Joe Cohn, College students deserve the right to hire counsel in expulsion hearings, The Hill, Sept. 11, 2013, available at http://thehill.com/blogs/congress-blog/education/321679-college-students-deserve-the-right-to-hire-counsel-in-expulsion-hearings (last visited July 17, 2014).

[3] See also United States v. Sayer, 748 F.3d 425 (1st Cir. 2014) (“The interstate stalking statute, which prohibits a course of conduct done with ‘intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress’ clearly targets conduct performed with serious criminal intent, not just speech that happens to cause annoyance or insult.”) (emphasis added); United States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (“Because [§ 2261A(2)(A) requires both malicious intent on the part of the defendant and substantial harm to the victim … ‘[i]t is difficult to imagine what constitutionally-protected . . . speech would fall under these statutory prohibitions.’” (citing United States v. Bowker, 372 F.3d 365, 378 (6th Cir. 2004) (emphasizing that the statute “prohibits interstate travel with the intent to kill, injure, harass or intimidate”)).

Cases: National: Violence Against Women Act Reauthorization