U.S. Department of Education Announces Final Rules to Help Colleges Keep Campuses Safe

The Obama Administration today announced publication of the final rule implementing changes made  to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) by the Violence Against Women Reauthorization Act of 2013 (VAWA).  That law and the new rule strengthen the Clery Act to more effectively address, and ultimately reduce, sexual violence on college campuses, including, domestic violence, dating violence, and stalking.

The Clery Act requires institutions of higher education to comply with certain campus safety- and security-related requirements as a condition of participating in the Federal student financial aid programs authorized by Title IV of the Higher Education Act.

“The Department has the responsibility to ensure that all of our students have the opportunity to learn and grow in a safe environment,” said U.S. Secretary of Education Arne Duncan. “These new rules require institutions to ensure that students and employees have vital information about crime on campus and the services and protections available to victims if a crime does occur, which will be significant assets in addressing the growing problems of sexual assault, domestic violence, dating violence, and stalking on our nation’s campuses.”

Earlier this year, the Department announced that a negotiating rulemaking committee, representing a broad range of experience, interests, and perspectives including campus law enforcement and security professionals, victim advocates, school attorneys, student affairs professionals, and most importantly, students, reached consensus on the draft of the new campus safety provisions  Those draft provisions were published in the Federal Register on June 20 as a proposed rule (NPRM) and included a 30-day public comment period.

Based on comments received after publication of the proposed rule from a variety of individuals and groups, the final rule includes additional requirements to ensure that institutions provide the most complete information possible to their students, better inform and protect victims, and clarify the process for collecting crime statistics and for disclosing in their annual security report the number of crime incidents that were fully investigated and determined to be unfounded, and thus, not included in their crime statistics during the three most recent calendar years.

Under the Clery Act, an institution is required to disclose crime incidents that occur in one of three geographic categories: on campus, on public property within or adjacent to the campus, or in noncampus buildings or property owned or operated by the school.  The final rule, which will be formally published in the Federal Register on Monday, October 20, requires an institution to record incidents of stalking based on the location where either the perpetrator engaged in the stalking or the victim first became aware of the stalking.  

Other provisions of the new rule require institutions to:

• Add gender identity and national origin as two new categories of bias that serve as the basis for a determination of a hate crime. 
• Describe each type of disciplinary proceeding used by the institution in cases of alleged dating violence, domestic violence, sexual assault and stalking, including the steps, anticipated timelines, and decision-making process for each, and how the institution determines which type of disciplinary proceeding to use.
• Include in their annual security report a statement of policy regarding the institution’s programs to prevent dating violence, domestic violence, sexual assault, and stalking as well as the procedures that the institutions will follow when one of these crimes is reported.
• Provide that an institution’s  disciplinary proceeding will afford the accuser and the accused the same opportunities to have others present during the institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice. 

To help support the higher education community, the Department has created a resource list to share some examples of best practices, information, and strategies postsecondary institutions may use to inform and tailor their campus sexual assault training and prevention efforts.  The Department will continue to update this list as it builds upon the Obama Administration’s efforts to end sexual assault on college campuses. 

Although the final rule will not go into effect on July 1, 2015, the Department reminded institutions that the VAWA statutory provisions are in effect now and institutions are expected to make a good faith effort to comply with those requirements.