Sexual Assault/Sexual Violence Against College Students: Chronology of Selected Recent Pronouncements by the Federal Government

Gentry Locke Partner Todd Leeson is an associate member of the National Association of College and University Attorneys.

2014 was the year that sexual assaults of college students became an important part of our nation’s discourse. In the last year or two, there have been a flurry of new Federal laws, regulations, guidance documents, proposed laws, and initiatives on the topic. In my communications with College Title IX coordinators in Virginia and other interested parties, I have found that it has been challenging for them to keep up with these developments. This is a short article that provides a description of recent pronouncements from the Federal Government.

Title IX of the Education Amendments of 1972 (“Title IX”)

As you know, Title IX prohibits discrimination based on sex in education programs or activities by entities that receive federal financial assistance. 20 U.S.C. Sec. 1681 et seq.

The U.S. Department of Education (“DOE”), a federal agency, has promulgated regulations interpreting Title IX. These regulations are set forth at 34 C.F.R. Part 106.

Title IX is enforced by the Office of Civil Rights (“OCR”) within the DOE. (http://www.ed.gov/about/offices/list/ocr/aboutocr.html)

OCR has issued guidance on Title IX, most notably in the form of what they call “Dear Colleague Letters” or “DCL.” Several of the key documents are listed below.

• “Revised Sexual Harassment Guidance; Harassment of Students by Employees, Other Students or Third Parties” (Jan. 19, 2001)(superseding 1997 Guidance).
• “Dear Colleague Letter regarding Bullying and Discriminatory Harassment” (Oct. 26, 2010). Guidance as to an entity’s obligation to protect students from students–on–student harassment on the basis of sex, race, color, national origin and disability. The letter clarified the relationship between bullying and discriminatory harassment.
• “Dear Colleague Letter on Sexual Violence” (Apr. 4, 2011). This was ground-breaking guidance. In this 19 page letter, OCR identified sexual assault on campus as an important civil rights initiative. The DCL explained that the sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. OCR also reminded schools of their responsibilities to take immediate and effective steps to end sexual violence. The DCR explained that a number of acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. http://www.ed.gov/news/press-releases/vice-president-biden-announces-new-administration-effort-help-nations-schools-address-sexual-violence
• “Questions and Answers on Title IX and Sexual Violence” (Apr. 29, 2014). This is another important “significant guidance document” from OCR. It is a 46 page document in question and answer format to further clarify an entity’s obligations under Title IX to address sexual violence as a form of sexual harassment. The table of contents is detailed and well organized as to the questions answered. http://www.ed.gov/news/press-releases/guidance-issued-responsibilities-schools-address-sexual-violence-other-forms-sex

Clery Act/Violence Against Women Act/Campus SaVE Act

The Jeanne Clery Act Disclosure of Campus Policy and Campus Crime Statistics Act (the “Clery Act”) requires colleges and universities to provide the public with crime statistics and information about campus crime prevention programs and policies. For example, colleges must disclose accurate and complete crime statistics for incidents that are reported to campus security authorities and local law enforcement that occur on or near the campus.

• On March 7, 2013, the Violence Against Women Reauthorization Act (“VAWA”) became law. Within VAWA is the Campus Sexual Violence Elimination Act (“Campus SaVE Act”). The Campus SaVE Act amends the Clery Act in several important ways.
  • It adds offenses involving domestic violence, dating violence and stalking to crimes that must be included in the annual security report.
  • It expands the category of “hate crimes” to include those based on “national origin” or “gender identity.”
  • The annual security reports must now include detailed descriptions of the institution’s procedures in cases of domestic violence, dating violence, or stalking and descriptions of its education and prevention programs.
  • The Act also codified some of the provisions in the April 2011 Dear Colleague Letter. For example, the Act mandates prompt and impartial internal investigation and resolution procedures and requires that alleged sexual assault victims be advised of their right to file internal complaints, criminal complaints, or both.
• The Campus SaVE Act became effective March 7, 2014.
• Throughout 2013 and through early 2014, stakeholders representing various constituencies engaged in negotiated rule-making as to proposed regulations to implement the VAWA/Campus SaVE Act. On or about April 1, 2014, the rule-making panel reached consensus on several important and/or controversial issues.
• On June 20, 2014, DOE published proposed regulations. These proposed regulations can be found at 79 Fed. Reg. 35,417–35,460 (June 20, 2014). DOE solicited public comments on or before July 21, 2014.
• On October 2, 2014, DOE published its final rule implementing changes made to the Clery Act with the VAWA. 79 Fed. Reg. 62,752-62,790 (Oct. 20, 2014). http://www.ed.gov/news/press-releases/us-department-education-announces-final-rule-help-colleges-keep-campuses-safe
• Although the final rule will not go into effect until July 1, 2015, the VAWA statutory provisions are currently in effect and institutions are expected to make a good faith effort to comply with the law and final rules.

White House Initiatives & Task Force

On April 29, 2014, the White House Task Force to Protect Students from Sexual Assault issued its first report, and the White House announced a new website to provide additional resources on the topic: www.notalone.gov.

For example, the website includes a proposed checklist for sexual misconduct policies. The website also includes a document that explains the differences as to the reporting requirements of Title IX and the Clery Act. https://www.notalone.gov/schools.

Conclusion

As you can see, there are several moving parts. I hope this “road map” will help you as you seek to understand your institution’s obligations to address sexual violence on campus.