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June 20, 2014

New DOE Proposed Rule on Sexual Violence: 5 Things Every College and University Should Know

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On June 20, 2014, the US Department of Education (“DOE”) published a proposed rule that further addresses the growing concern of sexual violence on college campuses. This proposed rule implements the changes to the Clery Act that President Obama signed in March 2013, and imposes numerous new campus safety and security measures on higher education institutions.

The proposed rule is the latest act in the federal government’s ongoing campaign to curtail and ultimately prevent sexual violence on college campuses, and represents the DOE’s third major undertaking in this regard in only the past two months (the other two being its April 29 issuance of updated guidance on schools’ obligations to investigate sexual violence under Title IX, and its May 1 decision to publicly release the list of institutions with open Title IX sexual violence investigations). These developments leave no question that the federal government is, appropriately, very focused on this important issue, and will do everything in its power to remedy it up to and including imposing newer and stricter requirements on educational institutions.

Given this ever-increasing regulatory environment, it is more important than ever for colleges and universities to stay on top of their expanding obligations and ensure they have policies and procedures in place to meet those obligations. In this article, I highlight five of the most important aspects of the DOE’s new proposed rule that every college and university must now understand and follow.

1. Transparency and dissemination are the keys to schools’ sexual violence prevention programs

A common theme throughout the proposed rule’s 200+ pages of text is the need for schools to not only put sexual violence prevention programs in place, but also to ensure that they are widely known throughout campus. The proposed rule contains numerous requirements that schools publish a litany of items related to its sexual violence prevention and investigation procedures, all in the name of increasing awareness. The most important such item is a detailed written description of its dating violence, domestic violence, sexual assault, and stalking prevention program, which the proposed rule states must include, at a minimum, the following: (1) a description of the institution’s primary prevention and awareness programs for all incoming students and new employees; (2) a clear statement that the institution prohibits the crimes of dating violence, domestic violence, sexual assault, and stalking; (3) definitions of the foregoing crimes that are applicable in the school’s jurisdiction as well as the operative definition of “consent” in reference to sexual activity; (4) a description of safe and positive options for bystander intervention; (5) information on risk reduction; (6) the procedures the institution will follow when a sexual crime is reported, including a statement of its disciplinary action procedures; and, (7) descriptions of all ongoing sexual violence prevention and awareness campaigns for students and employees.

2. Schools must provide detailed written information to victims of sexual crimes about the procedures that he/she should follow

In addition to its emphasis on schools’ obligations to generally publicize its sexual violence prevention program and procedures, the proposed rule also addresses schools’ obligations to individually inform victims of sexual crimes, in writing, of the rules and policies of which they can avail themselves. Notably, the proposed rule lists—for the first time—a number of specific items that a school must present to a victim when it learns of sexual violence, all, again, for the purpose of increasing transparency and awareness. These items, which must be presented to the victim in writing, include: (1) information about the importance of preserving evidence of the sexual crime; (2) instructions on how and to whom the victim can report the crime; (3) the victim’s option to notify law enforcement and his/her ability to decline to do so; and, (4) the victim’s rights and the institution’s responsibilities, if any, concerning orders of protection, no-contact orders, and/or restraining orders.

3. The proposed rule includes a formal anti-retaliation provision with regard to sexual violence reporting

Perhaps the most important change the proposed rule makes—despite its relative sparse discussion—is the announcement of a formal anti-retaliation provision to protect individuals who exercise their rights under the Clery Act (or its associated regulations). Notably, on its face the anti-retaliation provision is drawn to apply broadly, not only to the institution itself but also to any officers, employees, or agents of the institution. The provision is also drawn to prohibit a wide range of conduct beyond traditional retaliation, and included prohibitions on intimidating, threatening, coercing, or otherwise discriminating against any individual exercising his/her rights. It is not unusual for anti-retaliation provisions to proscribe a broad range of conduct by a wide range of individuals, and doing so is often the best way to achieve the desired results. But schools would be wise to ensure that all individuals who are involved in sexual violence reports and/or investigations in any way are aware of this provision and are trained on proper communication and documentation techniques to avoid inadvertently running afoul of this new requirement.

4. Maintaining the confidentiality of a victim entails far more than concealing his/her name

The notion of maintaining the confidentiality of a victim of sexual violence’s identification is nothing new. However, the proposed rule clarifies that schools are obligated to do more than simply redact the victim’s name when completing their recordkeeping functions under the Clery Act or providing the victim with accommodations or protective measures. In addition to the victim’s first and last name, the proposed rule identifies numerous other pieces of potential “identifying information” which the school must likewise keep confidential including: (1) the victim’s home or other physical address; (2) his/her email address or internet protocol; (3) telephone, social security, driver’s license, passport, and student identification numbers; (4) his/her date of birth; and, in some cases, (5) the victim’s racial/ethnic background or religious affiliation.

5. Schools must permit a wider range of accommodations to a victim of sexual violence so long as they are reasonably available

The proposed rule expands both the scope of schools’ obligations to make accommodations for victims of sexual violence, and also the number of victims for whom such accommodations should be made. Federal regulations previously instructed schools to provide written notification to its students that it will change a victim’s academic and living situation after an alleged sexual offense if those changes are “reasonably available.” The proposed regulation still abides by the “reasonably available” standard, but expands the scope of accommodations a victim may request by including changes to his/her transportation and working situations as well. The proposed rule also clarifies that schools must notify all victims of sexual violence about their option to request accommodations irrespective of whether he/she chooses to report the crime to campus police or local law enforcement.

About the Author

Callan Stein

Callan Steina partner in the litigation department of Donoghue Barrett & Singal. He regularly represents small and large businesses in civil lawsuits, including discrimination and wrongful termination cases, and he also advises them on internal policies and procedures. You can follow him on Twitter at @CallanSteinEsq

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