By Max Lewontin at The Chronicle of Higher Education
New federal rules issued on Monday aim to make campuses safer by requiring colleges to train students and employees on preventing sexual assault, dating violence, domestic violence, and stalking. The rules also include new categories for identifying hate crimes (gender identity and national origin) and specify that students can choose advisers, including lawyers, to accompany them in campus disciplinary proceedings.
“These regulatory changes provide new tools to improve campus safety,” Arne Duncan, the secretary of education, told reporters on Friday.
One advocate called the new rules momentous. They represent “the most significant change in campus-sexual-assault policy in 20 years,” said S. Daniel Carter, director of the 32 National Campus Safety Initiative of the VTV Family Outreach Foundation, a group representing survivors and victims of the mass shooting at Virginia Tech in 2007.
The U.S. Department of Education published the rules in Monday’sFederal Register. They interpret the Violence Against Women Act signed last year by President Obama and amending the campus-crime law known as the Clery Act. After the Education Department issued proposed rules, in June, that it drew from the consensus of an expert panel of negotiators, it considered public comments and made some minor changes, such as requiring colleges to disclose “unfounded” reports of sexual assault.
The final regulations come as colleges, under pressure from activists and government officials, are grappling with their legal responsibility to investigate and respond to students’ reports of sexual violence. The Education Department is now investigating more than 80 colleges for possible violations of gender-equity law involving alleged sexual misconduct, and federal and state lawmakers have introduced legislation to improve colleges’ response to the issue.
The rules will take effect in July 2015. Until then, colleges are expected to make a “good-faith effort” to comply, the department said.
The Chronicle spoke with advocates, experts, and higher-education officials about the impact of the new rules on colleges regarding sexual assault.
What are the main requirements of colleges?
Colleges are required to provide training to faculty and staff members as well as students. The training must clearly define terms such as “consent” and outline campus policies on sexual misconduct.
The goal is to improve transparency on how institutions handle students’ reports, said Lisa Maatz, vice president for government relations at the American Association of University Women. The regulations, she said, “make it really clear that each school has to talk about each step of the disciplinary proceedings.” That’s important for students who report assaults as well as the accused, she said.
In addition to collecting a wider range of campus-crime statistics, colleges must publicly report the number of sexual assaults that the campus police and other law-enforcement officials have determined to be “unfounded.” Previously, such incidents were excluded from campus-crime statistics.
The term comes from the Federal Bureau of Investigation, which holds that crimes found to be “false and baseless” by law-enforcement officials should be excluded from official tallies of reported crimes, said Mr. Carter. But under the new regulations, those reports will be counted in a separate category. That does not mean, Mr. Carter cautioned, that cases in which an accused student is found not responsible belong in that category.
How much of this are campuses doing already?
It varies by institution, said Connie L. Best, a professor at the Medical University of South Carolina who directs the National Crime Victims Research and Treatment Center. “Some are better at policies, but not so much in training,” said Ms. Best, who was one of the negotiators on the Education Department’s rule-making panel.
“At least now everybody knows kind of what the marching orders are,” she added.
Draft regulations and settlements between the department and colleges under investigation had given some hints, especially with respect to training. “Smart institutions, once they saw the handwriting on the wall, started making these changes early this year,” said Ms. Maatz.
What does it mean that students can now have “advisers” in campus hearings?
The provision allows both alleged victims and accused perpetrators to choose a lawyer, family member, campus official, or other advocate toappear with them throughout disciplinary proceedings. Amid much scrutiny of how colleges handle sexual-assault cases, advocates for both parties see the change as a significant milestone.
The interests of students in these cases, as well as the interests of colleges, are different, said Laura L. Dunn, a self-identified survivor of sexual assault and advocate for victims who also served as a negotiator on the department’s rule-making committee. “The school does have a dog in the fight—they’re worried about liability on either side,” she said. “So it really is important for there to be independent advisers.”
While a student can choose his or her own adviser, the college can limit that person’s participation in campus proceedings.
That was a compromise after the rule-making panel turned briefly contentious, as negotiators representing colleges argued against the presence of advisers, who they said would alter the process. Dana Scaduto, general counsel at Dickinson College and a former president of the National Association of College and University Attorneys, called allowing advisers “the single most problematic provision” in the rules, not least because some students could afford lawyers, and others could not.
What isn’t in the regulations that advocates are still discussing?
In a move that disappointed some advocates of victims’ rights, the regulations remain vague on what standard of evidence colleges should use in deciding sexual-assault cases. The Education Department has issued guidance that colleges should use the “preponderance of the evidence” standard, or more likely than not, rather than the stricter “beyond a reasonable doubt” criteria. But the new regulations do not specify a burden of proof.
The rules also do not define consent, as some advocates had hoped. Affirmative consent—often described as “yes means yes” rather than “no means no”—is now the legal definition on campuses in California, andmany other colleges have recently adopted it.
Ms. Dunn would have wanted the department to specify how students found responsible for sexual assault would be penalized by colleges, she said.
Joe Cohn, legal and policy director at the Foundation for Individual Rights in Education, which has advocated for due-process protections for accused students, worried about how the regulations define “stalking.” The definition, he said, removes the idea that offenders must have an intent to deliberately stalk victims that is present in other definitions of “stalking” as a crime.
What happens between now and July, when the regulations take effect?
Campuses will probably move toward compliance. “Many institutions have already begun conducting various types of training,” said Ada Meloy, general counsel at the American Council on Education.
“Every college wants to have as clean a record as possible with regards to sexual assault, and institutions are endeavoring to carry out the regulations,” she said.
Pressure runs high when more than 80 colleges are under federal investigation for possible violations of the law. “I hope that when they are audited or reviewed by the Department of Education,” said Ms. Meloy, “that those good-faith efforts will be recognized.”