As a result of changes that the Department of Education (ED) made last fall to the Violence Against Women Act (VAWA), on July 1, colleges and universities had to begin complying with new rules. These include revising annual security reports, gathering statistics for new crime categories, and maintaining ongoing sexual violence prevention and awareness campaigns for students and employees.
Meanwhile, lawmakers are deliberating over proposed legislation that would require new preventive measures, increase accountability, and impose stricter penalties for Clery Act violations.
Confusing legal requirements and increasing reports of sexual assault on campuses necessitate deep and wide institutional understanding of how to respond.
Campus Accountability and Safety Act
Last year, concerns about sexual assaults on college campuses reached new heights, drawing the attention of the White House and members of Congress. A report released in July 2014 by Sen. Claire McCaskill (D-MO) asserted major lapses in institutions’ responses to campus sexual violence. A bipartisan group of eight senators, led by McCaskill, introduced S. 590, the Campus Accountability and Safety Act (CASA), which was updated and reintroduced this year.
The proposed legislation would require institutions to take preventive measures to protect students from sexual assaults, increase accountability, and require establishment of new campus resources for assault victims. McCaskill’s bill would impose stricter penalties for Clery Act violations and create new transparency requirements through annual student surveys.
In response to the legi-slation, NACUBO joined a number of higher education associations in developing a letter describing the challenges institutions face in carrying out current laws, and detailing concerns with the proposals. The letter, similar to one sent to Capitol Hill last year, states, “We support many concepts in the bill intended to help campuses prevent and respond to these cases and provide needed support to survivors. However, improving the execution of these concepts would help the bill achieve its intended goals.”
The letter addresses a number of issues, including confidential advisers, memoranda of understanding with local police, campus disciplinary processes, and training requirements. It also points to legal and regulatory concerns, particularly related to a 2011 “Dear Colleague” letter from ED’s Office of Civil Rights (OCR) that reminds institutions of their responsibilities under Title IX, which notably strengthened language that directs campuses about their responsibilities in responding to sexual harassment.
Senate Hearing Explores Concerns
On July 29, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing on combating sexual assault on college campuses, in preparation for the reauthorization of the Higher Education Act (HEA). McCaskill testified at the session, as did three co-sponsors of her bill, Sens. Kirsten Gillibrand (D-NY), Dean Heller (R-NV), and Kelly Ayotte (R-NH).
One of several other witnesses, Janet Napolitano, president of the University of California, reiterated some concerns about clarity and coordination of existing laws and policies. She stated, “Within the Department of Education, the Clery Act, Title IX, VAWA, and OCR investigations use different definitions, coverage, and reporting requirements, and there is no coordination of investigations between the federal government and individual states.” She went on to state, “I am concerned that an entire cottage industry of consultants has grown to “help” schools manage sexual violence and sexual assault. Personally, I would rather invest the university’s resources in education, training, and prevention programs rather than in untangling the web of overlapping state and federal audits, investigations, and laws.”
Outlook for HEA
Both Sens. McCaskill and Gillibrand continue to make a strong case for swift action on CASA, and there is notable bipartisan support for their bill. At this time, they are working with the SenateHELP Committee to include their proposals addressing institutions’ responses to campus sexual violence as a part of the large-scale HEA reauthorization.
The current higher education law is set to expire on September 30. Yet, it is unlikely that Congress will complete a full-scale HEA reauthorization by that deadline, and NACUBO expects Congress to pass temporary extensions of the law until policymakers can come to agreement on a comprehensive update to federal higher education laws. Sen. Lamar Alexander (R-TN), chairman of the committee, recently indicated that he expects to make public a draft of the legislation later this fall.
However, delays in reauthorization of the HEA could alter the course for action on CASA. If co-sponsors of the sexual assault legislation become impatient or dissatisfied with progress on the higher education package, they could seek to move their bill as stand-alone legislation or attach it to another legislative vehicle.
No Changes to Title IX
On July 22, ED published a letter summarizing the final regulations implementing statutory changes to the Clery Act. In the letter, the department reminds institutions that, “The changes made to the Clery Act by VAWA did not affect in any way Title IX of the Education Amendments of 1972, its implementing regulations, or associated guidance issued by the department’s Office for Civil Rights. Nothing in the Clery Act, as amended by VAWA, alters or changes an institution’s obligations or duties under Title IX as interpreted by OCR.”