The Current Draft Of The Department Of Education’s Proposed Regulations For Violence Against Women Reauthorization Act/Campus Save Act Offers Some Guidance And Clarity

Posted On Thursday, April 10, 2014
By: Kevin E. Raphael

The most recent draft proposed regulation by Department of Education offers educational institutions some further guidance and clarity concerning the Women Against Violence Act/Campus Save Act.  The Department of Education will next promulgate the final proposed rule for comment.  We will provide further information concerning the final proposed rule when it is published.  The notable highlights of the most recent draft are:

  1. Clery geography for Clery Act reporting is now proposed to include, in addition to the current interpretation, “any areas within the potential jurisdiction of the campus police or the campus security department.”
  2. Except for sexual assault, Clery will mandate reporting of only the most serious offense, as established by the FBI’s UCR program.  For events involving sexual offenses, all crimes must be included in the report.  The example offered in the draft proposed rule involves a sexual assault/murder.  In that scenario, both crimes must be reported. 
  3. Affirmation of confidentiality of the complainant.  The proposed rules acknowledge and exempt from Clery reporting confidential reports by complainants to pastoral or professional counselors.  This exemption is narrowly proscribed as currently written.  The counselor must be recognized by a religious denomination and/or licensed or certified to provide counseling, and must be acting within the scope of the pastoral/counseling duties as a member of the educational institution’s community.  Further, the institution’s policies must clearly note how a complainant’s confidentiality will be protected from public record keeping, as permitted by law.
  4. The proposed rule contains further details about what must be included in an institution’s written policies: 1) what procedures complainants can follow to preserve evidence; 2) how to report the offense; 3) options of complainant to notify or not notify law enforcement, as complainant chooses; 4) the institution’s available resources to complainant concerning orders of protection, standing orders, no contact orders; and information on how a complainant may request reasonable accommodations for changes in academic, living, transportation and working conditions;
  5. More detailed information concerning what an institution’s policies must contain concerning mandated educational, awareness, and ongoing preventation programs; and
  6. More specific requirements concerning the disciplinary process.  The one that will impact institutions the most is a proposed requirement that the institution “not limit the choice of advisor for either the accuser or the accused.”  The institution can, however, establish restrictions regarding the extent to which an advisor may participate.  If the current proposed regulation is adopted, the accused will have the right to have counsel present in the disciplinary process, if the accused chose to do so.