HIGHLIGHTS:
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The U.S. Department of Education has updated The Handbook for Campus Safety and Security Reporting, the primary resource for institutions of higher education seeking guidance on their campus safety and security reporting obligations under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.
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The revised Handbook incorporates the Department's prior guidance on Title IX of the Education Amendments of 1972 and the Violence Against Women Act Reauthorization of 2013.
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With the publication of the revised Handbook, institutions of higher education are well advised to revisit their Clery Act compliance efforts and particularly their procedures for publishing the Annual Security Report before Oct. 1, 2016.
For the first time in five years, the U.S. Department of Education (Department) has updated The Handbook for Campus Safety and Security Reporting, the primary resource for institutions of higher education seeking "step-by-step and readable" guidance on their campus safety and security reporting obligations under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). Of critical importance to institutions, the revised Handbook incorporates the Department's prior guidance on Title IX of the Education Amendments of 1972 (Title IX) and the Violence Against Women Act Reauthorization of 2013 (VAWA 2013). Instead of trying to review and synthesize various documents for the most up-to-date federal guidance, the updated Handbook serves as a user-friendly compendium for institutions in the process of compiling their Annual Security Reports and understanding their more general Clery Act compliance obligations.
This alert highlights a few key changes to the Handbook, how those changes impact the Annual Security Report, and how these changes, combined with the recent formation of a Student Aid Enforcement Unit, may signal a change in enforcement priorities at the Department.
Annual Security Report Changes
The Clery Act requires higher education institutions to file an Annual Security Report with the Department by Oct. 1 every year. Each institution's Annual Security Report must also be published and distributed to its current students and employees, and the institution must inform prospective students and employees about the availability of the report. The Handbook provides institutions with technical guidance for collecting and publishing the data needed for the report. While there are many changes included in the 2016 Handbook revisions, the following are some highlights:
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Institutions must collect data on reported incidents of dating violence, domestic violence, sexual assault and stalking. While this requirement was conveyed with the passage of VAWA 2013, which went into effect in 2015, the 2016 Handbook provides helpful examples to assist institutions in meeting their obligations. For example, the Handbook provides definitions and scenarios to indicate how the term "dating" may be used in different cultural contexts and cautions that institutions should not rely upon terms like "hooking up" versus a "monogamous relationship" to definitively determine whether certain behavior constitutes "dating violence."
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Institutions must also describe their policies and procedures for supporting victims of reported Clery Act crimes. The current Handbook goes beyond the prior version with regard to suggested practices of indicating resources for victims, and it also goes further than the Title IX obligation to develop a policy and process for responding to sexual misconduct. For example, VAWA 2013 required institutions to "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." In 2014, the Department determined that this VAWA 2013 requirement was consistent with Title IX and stated that if "the school permits one party to have lawyers or other advisors at any stage of the proceedings, it must do so equally for both parties." In practice, this created parity of process. In requiring that institutions now go beyond providing resources and describe their policies and procedures for supporting victims in their Annual Security Reports, institutions should be thoughtful to ensure that any policies and procedures designed solely for victims do not interfere with the parity that currently exists – or should exist – in many institutional processes.
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Institutions must provide additional information on prevention and awareness programs to incoming students and new employees. The new edition of the Handbook requires more detail in the program descriptions, addressing bystander intervention training and risk reduction methods, among other programming.
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Institutions must describe in greater detail their disciplinary policies applicable to dating violence, domestic violence, sexual assault or stalking. The descriptions must address the type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision-making process for each type of disciplinary proceeding; how to file a disciplinary complaint; how the institution determines which type of proceeding to use based on the circumstances of an allegation; and the standard of evidence that will be used during the disciplinary proceeding. Institutions are also required to list the possible sanctions that may be imposed and the range of protective measures that the institution may offer in such cases. Again, while this was raised in VAWA 2013, the Handbook makes clear that Annual Security Reports must pay particular attention to these specific behaviors.
With the publication of the revised Handbook, institutions of higher education are well advised to revisit their broader Clery Act compliance efforts, most immediately the content of their Annual Security Reports that must be published by or before Oct. 1, 2016.
Student Aid Enforcement Unit
Earlier this year, the Department also created the Student Aid Enforcement Unit (SAE Unit), which consolidated several groups within the Department's Office of Federal Student Aid (FSA). The Department stated that the newly formed SAE Unit would be able to "respond more quickly and efficiently to allegations of illegal actions by higher education institutions." While the SAE Unit appears to be focused primarily on institutional transgressions involving federal student aid and other high-level misconduct, it also subsumed the FSA's Clery Group, which is responsible for monitoring institutional compliance with the Clery Act. (FSA is the branch of the Department charged with enforcing the Clery Act, not the Office for Civil Rights, as many assume.)
In its press release, the Department discussed the four primary branches of the SAE Unit: the Investigations Group, the Borrower Defense Group, the Administrative Actions and Appeals Service Group, and the Clery Group. The Department indicated that the SAE Unit would partner with other state and federal agencies to "build[] cases against institutions of higher education." The Department also indicated that the Investigations Group, in particular, would be equipped with "a broad set of interventions and tools, including subpoena authority, document demands, and interrogatories and interviews" to enforce federal law. Whether the Investigations Group – and its enhanced investigative powers – will partner with the Clery Group to investigate Clery Act compliance remains to be seen.
Taken together, the updates to the Handbook and the formation of the SAE Unit earlier this year indicate that the Department is positioned to take a more aggressive posture with regard to Clery Act compliance. It is better for institutions to conduct a self-audit and make appropriate changes before the government arrives on campus to demand them.
