In a move that was foreshadowed by statements from the new administration, by letter dated September 22, 2017, the U.S. Education Department, Office for Civil Rights (“OCR”) announced the withdrawal of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence. OCR will no longer rely on these documents in the enforcement of Title IX cases. As reasons for this action, the Education Department cited concerns that the 2011 and 2014 guidance documents led to “deprivation of rights” for students and that the Department had not followed a formal public notice and comment process before issuing the 2011 and 2014 guidance documents.
New September 2017 Question & Answer Document Issued
In place of the April 4, 2011 Dear Colleague Letter (“DCL”) on sexual misconduct as well as the April 29, 2014 Questions and Answers on Title IX and Sexual Violence, the Department issued a new question and answer document – the September 2017 Q&A on Campus Sexual Misconduct – to guide institutions while the Department conducts an official rulemaking process to promulgate new Title IX regulations. This new Q&A relies in large part on the 2001 Revised Sexual Harassment Guidance and the January 25, 2006 Dear Colleague Letter on Sexual Harassment.
The most notable changes reflected in the newly-issued 2017 Q&A on Campus Sexual Misconduct include:
The Department has withdrawn its expectation that investigations will be completed within 60 days. Investigations must be “prompt,” but there is no specific expected timeframe for completion. See Question 5.
The Department has retracted its position that only a “preponderance of evidence” standard may be used in sexual harassment and sexual violence cases. Instead, the standard of proof for finding a violation in sexual misconduct cases should be consistent with the standard the institution uses in other types of student misconduct cases, which may be either a “preponderance of evidence” standard or a “clear and convincing evidence” standard. See Question 8, fn. 19.
The Department emphasizes the importance of impartiality, saying that “institutional interests” must not interfere with the impartiality of investigations. Investigators are to be “trained” and “free of actual or reasonably perceived conflicts of interest and biases for or against any party.” See Question 6. If institutions do not already provide an opportunity for parties to raise objections to investigators or other decision-makers, it may be advisable to include such an opportunity.
In withdrawing the 2014 Q&A, the Department has retracted its previous list of topics on which investigators and adjudicators must be trained. In its place, the Department cautions against “training materials or investigative techniques and approaches that apply sex stereotypes or generalizations.” See Question 6. Similarly, the Department announces that decision-makers must approach cases “objectively and impartially” and may not employ or rely on “sex stereotypes or generalizations.” See Question 8. Institutions should review training provided to investigators and adjudicators to ensure compliance with this aspect of the guidance.
The Department retracted its prohibition on mediation in sexual violence cases. The Department’s newly announced position is that mediation and other forms of informal resolution may be used to resolve any Title IX complaint if both parties voluntarily agree to participate. See Question 7.
The Department discourages any restriction on the ability of either party to discuss an investigation, stating that such a restriction is likely inequitable and may impede parties’ ability to gather and present evidence. See Question 6.
The Department has announced that the investigation should result in a written report summarizing both “the relevant exculpatory and inculpatory evidence”, that the parties should be provided “equal access” to this information, and that they should have the opportunity to respond to the report in writing and/or at a hearing prior to a determination of responsibility. See Question 6.
In determining interim measures, a school “may not rely on fixed rules or operating assumptions that favor one party over another.” However, the Department also notes that, in cases of sexual assault, dating violence, domestic violence and stalking, colleges and universities continue to have obligations under the Clery Act to provide reasonably available interim measures to a reporting party who requests such measures. See Question 3.
The Department has reversed its previous position that, if an opportunity for appeal is afforded to one party, it must be provided to both parties. Now, institutions may restrict the right to appeal to responding parties only. See Question 11.
What this Means for Institutions
It is doubtful that the Department’s change of position will require institutions to wholly revamp their Title IX policies and procedures. For the most past, the new guidance does notdisallow institutions from continuing current practices if the institution wishes to do so, and in fact some of those practices and procedures continue to be required by the Violence Against Women’s Act amendments to the Clery Act.
One notable exception is the standard of evidence. If an institution uses the higher standard of clear and convincing evidence in other student misconduct cases, the institution will need to consider the need to either change the standard of evidence in those other cases to a preponderance of evidence standard or change the standard applicable to sexual harassment and sexual assault cases. Also, if institutions do not currently allow parties access to the investigative file, they will need to ensure that this access is incorporated into their procedures going forward. Relatedly, the requirement that the parties have an opportunity to respond to a written investigative report prior to a determination of responsibility may necessitate refinements to some processes that utilize an “investigator model” for determinations of responsibility, as well as processes that use a formal hearing to consider evidence other than in “report” form.
More generally, the new guidance places a renewed focus on impartiality. All institutions would do well to review their policies, procedures and personnel involved in the process with an eye on this issue.
State Law Requirements
In addition to the federal requirements impacted by OCR’s new guidance, some states have enacted laws on the topic of response to sexual violence. For instance, New York State’s “Enough is Enough” Law imposes a fairly full panoply of institutional requirements with respect to sexual assault, dating violence, domestic violence and stalking, and New York colleges and universities must continue to comply with this state law despite the U.S. Department of Education’s lessening of its regulatory requirements. Generally, New York State’s requirements are not in conflict with the Department’s newly-issued positions as articulated in the 2017 Q&A on Campus Sexual Misconduct. Perhaps the most notable potential exception is with respect to interim measures. New York State law seems to require a formulaic no-contact order that imposes on the responding party the obligation to “leave the area immediately” if in a public place with the reporting party, whereas the Department’s newly announced position is that interim measures “may not rely on fixed rules or operating assumptions that favor one party over another.” Whether and how these two directives can be reconciled will require further consideration and analysis.
The Department’s announcement makes clear that this is not necessarily the last change it will make with respect to schools and their Title IX obligations.
If you have questions about how the September 22, 2017 DCL or Q&A on Campus Sexual Misconduct impacts your current policies and procedures please reach out to our Higher Education Practice group.
In remarks today, United States Secretary of Education Betsy DeVos announced that the Department of Education plans to initiate a public comment period to begin the process of adopting new regulations on campus sexual violence and harassment prevention and response. The new regulations would supplant existing Department subregulatory guidance (most notably the April 4, 2011 “Dear Colleague Letter” and the 2014 “Questions and Answers on Title IX and Sexual Violence” issued by the Office for Civil Rights). The timing of the Department’s rescission of the existing guidance is not entirely clear. Initially it appeared that, contrary to expectations in some quarters, the existing guidance would remain in effect pending completion of the rulemaking process (and that institutions could and should continue to follow it in the interim). However, following Secretary DeVos’s remarks, the Department indicated that it would issue new “information” about how institutions should comply with their Title IX obligations pending completion of the rulemaking process.
The content and significance of any regulations that might ultimately be issued is, of course, difficult to predict and will depend at least in part on the nature of public comments that the Department receives. However, based upon recent statements by Secretary DeVos and Acting Assistant Secretary for Civil Rights Candice Jackson, institutions can likely expect any new regulations to address, among other things, the rights of students accused under campus disciplinary processes (potentially in a manner akin to some of the respondents’ rights provisions of New York State’s so-called “Enough is Enough” legislation of 2015).
The new regulations will add to the existing patchwork quilt of legal and regulatory requirements to which institutions are subject in this area. Notably, certain federal requirements with respect to campus sexual violence policies and procedures (e.g., the requirement that students be permitted the assistance of an “advisor of choice” in connection with campus disciplinary proceedings) arise not from the Department’s subregulatory guidance, but from the 2014 Violence Against Women Act (VAWA) amendments to the Clery Act. These requirements would be unaffected by any regulations the Department may adopt. In addition, institutions in states such as New York, California and Illinois will also need to assess and resolve potential conflicts between the federal regulations and state law sexual violence statutes.
Needless to say, today’s announcement makes the future course of sexual violence prevention and response on college and university campuses an unpredictable proposition. One thing is certain, however: institutions can expect, yet again, the need to review and revise their policies and procedures as they have done so many times before based on a seemingly never-ending succession of legislative and regulatory pronouncements.
The Handbook for Campus Safety and Security Reporting (the “Handbook”), which provides important guidance for institutions as it relates to their compliance with the Clery Act’s safety and security requirements, was recently revised and a new version (the 2016 Edition) released by the United States Department of Education. This valuable resource had not been updated since 2011. The 2016 Edition of the Handbook contains updated provisions with respect to, among other things, the Violence Against Women Reauthorization Act of 2013.
The 2016 Edition of the Handbook, which replaces all previous versions of the Handbook, can be accessed here.
New York’s proposed legislation contains extensive provisions dealing with victims’ rights. Specifically, Section 6442 of the legislation requires adoption of a Victim and Survivor Bill of Rights that provides for the right to:
1. Make a report to local law enforcement and/or State Police 2. Have disclosures of sexual violence treated seriously 3. Make a decision about whether or not to disclose a crime or incident and participate in the conduct of the criminal justice process free from outside pressures from college or university officials 4. Be treated with dignity and receive from officials courteous, fair and respectful health care and counseling services 5. Be free from any suggestion that the Victim/Survivor is at fault when these crimes and violations are committed or should have acted in a different manner to avoid them 6. Describe the incident to as few individuals as practicable and not be required to unnecessarily repeat a description of the incident 7. Be free from retaliation by the institution, the accused and/or their friends, family and acquaintances 8. Exercise civil rights and practice of religion without interference by the investigator, criminal justice or conduct process of the institution.
By and large, these provisions reflect best practices, and most institutions would say that their processes already include these principles. However, there is a real and consequential difference between an understanding that an approach is best practice and a statutory obligation. In several instances, we believe institutions would benefit from additional direction and guidance in order to fully understand what the bill intends to impose as a matter of legal mandate. For example, Item 4 above could be read as creating a “right” that victims receive from their institution “health care and counseling services,” and that these services must be “courteous, fair, and respectful” to victims/survivors. However, some institutions do not provide counseling and/or health care services to any students, and the question is whether this legislation would require them to do so. We suspect not, and rather the likely intent is to ensure that if these services are provided to students generally, the service providers are sensitive to victims/survivors’ needs. Nonetheless, given the language used, clarification that the legislation is not mandating that institutions provide these services (or, in the alternative, that it is) would be useful. Items 5 and 6 are certainly understandable as best practices, but, as statutory obligations, they may cause consternation, at least without further guidance. Is asking a victim how much he or she had to drink “suggesting” the victim is at fault (even though that information can be crucial to determining whether a victim was incapacitated)? At what point does going back to a victim with follow up questions to make sure the institution has a complete and accurate picture of events become “unnecessary” and subject the institution to a claim that this provision has been violated? Again, these concepts largely reflect best practices, but when included as part of a statutory scheme that presumably creates legal rights, and potential claims, their inclusion without more direction is likely to cause implementation problems. With respect to Item 7, while every institution should take steps to protect against retaliation, no institution can guarantee that retaliation will not occur, especially retaliation by an accused’s friends or family who might have no direct connection to the institution and therefore are beyond the institution’s control (other than to bar these individuals from campus, but, of course, this does nothing to stop electronic or other retaliatory communication). Yet this provision could be read as literally requiring the institution to provide that the victim will be free from that retaliation. Finally, the reference to the “practice of religion” in Item 8 could benefit from some further explanation. We suspect the intent is to ensure that one’s exercise of religious beliefs is not used to frustrate full access to the investigatory and adjudicatory processes, such as by scheduling an interview or hearing on an individual’s Sabbath. Section 6442 also provides that an institution “shall list the following options in brief” -- presumably as something separate from the Bill of Rights but the legislation does not explicitly so state -- and make clear that these options can be pursued by a victim simultaneously:
1. Receive resources, such as counseling and medical attention 2. Confidentially or anonymously disclose a crime or violation 3. Make a report to an employee with the authority to address complaints, including the Title IX Coordinator, “a student conduct employee,” University police or campus security, or family court or civil court 4. Make a report to local law enforcement and/or state police
In Section 6443, the legislation requires that each victim/survivor be provided with the following information (presumably upon their making a report), even though it is largely a repeat of what is in the Bill of Rights:
1. The right to notify local law enforcement or the State Police 2. The right to report confidentially to institutional officials, who can assist in obtaining services for victims/survivors 3. The right to disclose confidentially to and obtain services from New York State, New York City and County services; 4. The right to report to institutional officials who can offer privacy and can assist in obtaining resources 5. The right to file a criminal complaint with University Police or campus security 6. The right to file a report of “sexual assault, domestic violence, dating violence and/or stalking” and the right to consult with the Title IX Coordinator, which reports are to be investigated in accordance with the institution’s policy and “a victim/survivor’s identity shall remain private at all times if said victim/survivor wishes to maintain confidentiality” 7. When the accused is an employee, the right to report the incident to Human Resources or the right to request that a confidential or private employee assist in reporting to Human Resources. Disciplinary proceedings are to be conducted in accordance with any collective bargaining agreement. If the accused is an employee of an affiliated entity or a vendor, institutional officials are to assist in reporting the matter to that affiliated entity or vendor and if necessary “assist in obtaining a persona non grata letter, subject to legal requirements and college policy.” 8. The right to withdraw a complaint or involvement from the institutional process at any time
Some of these items don’t directly involve the institution – such as the victim’s right to obtain services from the State of New York, the City of New York and “County services.” It is not quite clear why this is made an institutional obligation, or how an institution is even to comply with it when the services referenced are not defined. In a similar vein, Item 5 refers to the “right to file a criminal complaint … with campus security.” At many institutions, members of campus security are not actually sworn law enforcement officers, so they are not in a position to accept a criminal complaint for filing. Likely, this section of the legislation was intended to apply in situations where campus police/security have that authority, and was not intended to require campus security forces to otherwise purport to accept criminal complaints; however, clarification in this regard would be helpful. Of more significance is Item 6 from Section 6443, which suggests that a victim has an absolute right to report and have their identity kept confidential. Item 8 likewise creates the impression that a victim has complete and total authority to cease an investigation or disciplinary process. These requirements create either an actual conflict with Title IX, which we doubt was the intent, or, at least, potential confusion for everyone. Under Title IX an institution must generally defer to a victim/survivor’s wishes regarding confidentiality, but there are some instances in which OCR allows and even expects/requires the institution to act despite the victim’s wishes (e.g., where there is a threat to the victim/survivor or the campus community), even if doing so might require disclosing the identity of the victim/survivor despite his/her wishes. Section 6445 replicates the Title IX considerations in determining whether to pursue an investigation despite a victim’s wishes, but it makes no mention of disclosure of the victim’s identity. On its face, then, this legislation could be read as prohibiting disclosure of a victim’s identity even if concerns over campus safety dictate that an institution proceed with an investigation and even if the only way to effectively do that is to identify the victim. We doubt that the legislation intends to create this conflict, but, unless this language is modified to reconcile these obligations with Title IX, institutions may find themselves wrestling with potentially inconsistent federal and state obligations. The legislation also provides certain “protections and accommodations” for victims:
1. When the accused is a student, a “no contact Order” 2. Assistance from University Police or campus security (or other college officials) in obtaining an order of protection, or if outside of New York, an equivalent order; to receive a copy of the order and have a college or university official explain it (including the consequences of a violation) and answer questions about it; and to receive assistance from University police or campus safety to effectuate an arrest if they have arrest powers or seek local law enforcement assistance if they do not 3. If the accused is a student and presents a risk to the community, interim suspension (and other interim measures if the accused is not a student but is otherwise a community member) 4. Issuance of a persona non grata letter to non-community members who are accused 5. Reasonable and available interim measures such as accommodations that effect a change in academic, housing, employment, transportation or other applicable arrangements in order to ensure safety, prevent retaliation and avoid an ongoing hostile environment
Again, while many of these elements are already “standard issue” under Title IX, there are several that are not. Under Item 1, the legislation appears to give the person asserting a violation an absolute right to a no contact order without any showing at all other than naming an accused, which order is without duration, and which places full responsibility on the accused to leave a public place “immediately” if the victim and accused “observe” each other there. On its face, the provision allows no regard for the circumstances of the individuals involved, or even the campus. On a large campus where the two individuals rarely encounter each other, this provision might not be such a concern. But what about on a small campus where the individuals share the same major? Surely, this provision is not intended to require that upon an unsubstantiated allegation -- instantly and permanently -- the other student is barred from all of his/her classes, eating in the one dining hall or using the one library if the accuser is there, etc. Institutions currently have the ability to evaluate the facts and circumstances and craft a stay away solution that is fair and reasonable. It would be a difficult and unfortunate situation if this bill intends to erase any individualized consideration. This is a provision that requires substantial clarification in order to be practicable. Interestingly, this portion of the legislation refers to “victims and survivors,” but doesn’t identify victims and survivors of “what.” In some places, the legislation refers to victims and survivors of sexual assault (and domestic and dating violence and stalking) and in other places to victims and survivors of the seemingly broader category of “sexual violence,” and in yet other places, like here, to neither – just victims and survivors. Again, more clarity in the final legislation will only help everyone involved.
In this installment of our continuing analysis of the Governor’s “Enough is Enough” proposed sexual violence legislation, we turn to the minimum penalties for offenders that the bill would require. The bill, if passed as written, would mandate that colleges and universities include the following provision in their sexual misconduct policy: “For students found responsible for committing sexual assault, the available sanctions shall be either immediate suspension with additional requirements or expulsion.” Thus, a college and university would be required by law to suspend or expel any student found by a preponderance of the evidence to have committed “sexual assault”. Note the word “shall”: the legislation would allow absolutely no institutional discretion, no matter the facts or circumstances of the “sexual assault”. This leads to the obvious question, “What conduct is deemed a ‘sexual assault’ for purposes of this mandatory minimum penalty?” The bill does not define the term “sexual assault”, and “sexual assault” is not defined under New York’s penal code. Assuming that the bill intends to track VAWA’s definition of “sexual assault”, the following would be included: rape (which is any nonconsensual penetration), fondling (which is any nonconsensual sexual touching of private body parts), statutory rape and incest. Recall that this bill requires “affirmative consent”, meaning that all parties must have actively expressed consent to the specific sexual act on this specific occasion. Silence is not consent, and consent on prior occasions alone is not enough. Consider the following scenario. A male student and a female student have been “hooking up” on each of the past five Saturday nights. They kiss, and he starts to touch her breasts, and she removes her shirt. On the sixth Saturday, the kissing and touching occur but she does not remove her shirt. After a few minutes, he stops, and they go their separate ways. The woman brings a complaint, saying that she did not want her breasts touched on this recent Saturday night. She did not tell him during the interaction how she felt, but she also did not say that the touching was okay or actively participate (e.g., she did not remove her shirt). Assuming that it is determined that she did not affirmatively consent to the touching on that night, the college would have no choice except to – at a minimum – suspend the male student and impose undefined “additional requirements” on him. (The college would have the discretion to determine the length of the suspension, but the college would have no discretion about whether to suspend.) If there is any campus situation laden with critical nuance, it is a sexual interaction between two young adults. Administrators would likely agree that many, and perhaps even most, acts of nonconsensual sexual activity should result in suspension or expulsion. But there may be circumstances where a suspension ‘plus’ or expulsion seems too severe a penalty in view of all of the relevant circumstances of the case. The dilemma is heightened by the absence of a definition of sexual assault in the legislation, as it is not clear whether the bill intends to cover any nonconsensual sexual contact. If so, a single kiss without affirmative consent may constitute a sexual assault that requires a suspension. Perhaps there is leeway in how an institution defines sexual assault for the purpose of imposing a mandatory minimum penalty, but that is not clear from the statute. The possibility of this result may have an ironic unintended consequence. The mandatory minimum penalty no doubt stems from the perception that institutions have been too lenient on offenders. However, in a close case, an investigator or disciplinary decision making body, realizing that a finding of responsibility will trigger an automatic penalty of at least suspension and feeling that such penalty is unwarranted under the circumstances, may decline to find responsibility at all. The proposed legislation’s goal of ensuring that serious offenses are punished seriously is laudable. However, the legislation’s use of a blunt instrument approach to sanctioning risks overshooting the mark and deprives institutions of the ability to consider the unique circumstances of specific cases. Despite the good intentions behind the legislation, the mandatory minimum penalty provision is language that we believe could benefit from modification, or at least clarification and definition, to better serve its purpose.
At the end of 2014, the FBI issued its Study of Active Shooter Incidents in the United States between 2000-2013 (“Study”). This first of its kind study found 160 active shooter incidents in the United States during this time period. An active shooter incident, for purposes of the study, is defined as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” There were 1,043 casualties (killed and wounded, but not counting the shooters) in these 160 incidents. The Study broke down the location of these events into 11 categories, including schools (pre-k through 12) and institutions of higher education. 24.4% of these incidents occurred in an educational setting, with 16.9% (27 incidents) occurring in a pre-k to 12th grade settling (the second highest of all 11 categories) and 7.5% (12 incidents) occurring at an institution of higher education (the fifth highest of the 11 categories). In the 12 incidents at higher education institutions:
60 deaths resulted and 60 individuals were wounded;
ages of involved shooters ranged from 18 to 62, with the shooters consisting of 5 former students, 4 current students, 2 employees, and 1 patient visiting a medical center;
2 of the shooters were female and 10 were male;
5 of the 12 incidents occurred on a Friday, with 2 each on Thursdays and Mondays; and
4 of the shooters committed suicide at the scene, while 2 were killed by police at the scene.
The institutions involved covered the gamut, including Appalachian School of Law, Case Western Reserve University, Virginia Tech, Louisiana Technical College, Northern Illinois University, Hampton University, University of Alabama, The Ohio State University, University of Pittsburgh Medical Center, Oikos University, New River Community College and Santa Monica College. Unfortunately, these statistics highlight the importance of institutions taking steps to address this threat, including:
developing and testing, as required by the Clery Act’s emergency notification provisions, an effective communication system so that students and staff can be alerted to an active situation;
developing and communicating protocols, in compliance with the Clery Act and in accordance with emergency management best practices, to be followed in the event of an incident, including protocols developed in conjunction with local law enforcement for a coordinated response;
training appropriate personnel on identification of risk factors and appropriate responses, and developing an appropriate threat assessment process to identify and evaluate persons of potential risk within the institutional community.
On July 14, 2014, the United States Department of Education issued a “Dear Colleague” letter reiterating its prior guidance to institutions for complying their Clery Act obligations under Campus SaVE Act provisions of the Violence Against Women Reauthorization Act of 2013 (“VAWA”). Institutional obligations under the new statutory provisions affect the Clery Act Annual Security Report that institutions must issue by October 1, 2014. During early 2014, the Department engaged in a negotiated rulemaking process that culminated in consensus on a set of draft regulations, and the publication of proposed regulations for public comment on June 20, 2014. The Department has stated that it expects to publish final regulations by November 1, 2014, which would then become effective July 1, 2015. Given the delay between the effective date of the new statutory requirements and the effective date of the new regulations, the Dear Colleague letter reiterates the Department’s expectation that, until the Department's regulations are adopted in final form and become effective, institutions "must make a good-faith effort to comply with the statutory provisions as written." The Department cautions that the proposed regulations may be modified in response to public comments and, accordingly, that reliance on the proposed regulations will not necessarily ensure compliance. In particular, the Department observed that “outside parties may be offering training to institutions on how to comply with the new requirements under the Clery Act. None of this training has been reviewed or endorsed by the Department and the Department is not bound by any statements made by these parties. Moreover, we also remind institutions that the proposed regulations … may be changed after we review the public comments. Therefore, training which relies on the proposed regulations may not fully capture what is required for compliance once the final regulations are effective.” While the Department is correct that compliance with the proposed regulations does not guarantee compliance with VAWA’s Clery Act provisions, and it is understandable that the Department wishes to distance itself from the various training programs being offered by private parties (many of which adopt conflicting approaches and interpretations of the statutory requirements), the proposed regulations are certainly helpful in illustrating the Department’s current thinking as to the meaning of the statutory requirements. As a result, it is difficult to envision an institution being criticized for designing interim compliance measures based on the proposed regulations, albeit with the knowledge that the requirements may change, and thus institutional policies and procedures may correspondingly need to be modified, upon adoption of the final regulations. The key lies in ensuring that measures implemented now are indeed revisited to ensure conformity with the final version of the regulations, rather than being adopted and simply left “on the shelf.”
The New York State Senate passed a bill today that would amend New York’s Campus Safety Act to require institutions, effective immediately upon its enactment, to notify law enforcement of any report of a violent felony or that a student who resides in institution owned or operated student housing is missing. The proposed legislation, which was previously passed by the New York State Assembly on May 5, 2014, will now be presented to the Governor for signature. Under the proposed legislation, institutions would be required to notify law enforcement as soon as practicable, but no later than 24 hours after receiving any such report. The New York State Education Law currently requires institutions to adopt and implement plans for notifying law enforcement, but does not mandate that notification be given. Under federal law, the Clery Act requires institutions to have a policy that encourages the reporting of all crimes to campus police and to law enforcement. The Clery Act already requires institutions to notify law enforcement when any student who lives in on-campus housing has been determined to be missing for 24 hours. Therefore, if the proposed legislation is enacted, institutions would comply with its missing student notification requirements by continued compliance with the notification procedures required under the Clery Act. Notably, the proposed legislation’s reporting requirements “shall take into consideration applicable federal law, including, but not limited to, the federal Campus Sexual Assault Victims’ Bill of Rights under Title 20 U.S. Code Section 1092(f) which gives the victim of a sexual offense the right on whether or not to report such offense to local law enforcement agencies.” This language makes clear that if a sexual assault occurs which constitutes a violent felony under New York State law, an institution’s reporting requirements under the proposed legislation would give way to the rights of the victim under federal law to decide whether or not to report the incident.
The recent experience of Dominican College in New York should serve as a reminder to all institutions of the importance of accurate Clery Act reporting. In 2009, Dominican College was subjected to a U.S. Department of Education program review for the 2006 and 2007 periods. In 2013, the Department of Education finally determined that the College had failed in its Clery Act reporting obligations in several respects, notwithstanding the College’s efforts at correcting those errors upon notification of the deficiencies by the Department. According to the Department’s findings, the College reported inaccurate crime statistics, it did not properly define and report crimes statistics separately for non-contiguous facilities, it did not properly and timely distribute its Annual Security Report and its report did not contain required policy statements, and it did not maintain accurate daily crime logs. The College was initially fined $262,500 for these violations. Following an appeal, the fine was reduced a few weeks ago by the Department to $200,000 by way of a settlement agreement between the Department and the College. Understanding, and complying with, the requirements of the Clery Act and its reporting obligations is not only “the law,” but it should be clear given Dominican College’s recent experience that it just makes good economic sense. Speaking of the Clery Act, the Department has recently announced its intention to establish a negotiated rulemaking committee to prepare proposed regulations to address the changes to the campus safety and security reporting requirements in the Clery Act as a result of the Violence Against Women Reauthorization Act of 2013 (VAWA).
In a unanimous decision issued on October 31, 2013, the Virginia Supreme Court, in the case of Commonwealth of Virginia v. Peterson, held that as a matter of law, officials at Virginia Tech were not negligent in failing to warn students who were killed by a gunman on its campus in April 2007. Specifically, the court ruled that the danger to students from the gunman’s second round of killings was not known or reasonably foreseeable to officials. The Court reasoned as follows:
In this case, the Commonwealth knew that there had been a shooting in a dormitory in which one student was critically wounded and one was murdered. The Commonwealth also knew that the shooter had not been apprehended. At that time, the Commonwealth did not know who the shooter was, as law enforcement was in the early stages of its investigation of the crime. However, based on representations from three different police departments, Virginia Tech officials believed that the shooting was a domestic incident and that the shooter may have been the boyfriend of one of the victims. Most importantly, based on the information available at that time, the defendants believed that the shooter had fled the area and posed no danger to others (emphasis in original).
The decision set aside a 2012 jury verdict against the Commonwealth which awarded $4,000,000 to the families of two students who were killed (which was subsequently reduced to $100,000 per family). Although this decision provides some comfort to institutions, the standard of vigilance expected of colleges and universities has indisputably changed since the Virginia Tech shooting (as have their obligations to warn their campus communities); in addition Department of Education enforcement proceedings arising out of the incident remain unresolved. As a result, institutions should remain vigilant in designing, testing and deploying systems and processes to ensure the timely dissemination of information in emergency situations.