ACE submitted comments to the Department of Education (ED) July 21 on proposed regulations to implement changes to the Clery Act made by the Violence Against Women Act (VAWA) Reauthorization Act, which was signed into law last year.
The Clery Act, known formally as the Jeanne Clery Disclosure of Campus Crime Statistics Act, requires colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their campuses. VAWA expands the information colleges must incorporate into their annual crime reports including the new “Clery crimes” of domestic violence, dating violence, and stalking.
The proposed regulations, published in the June 20 Federal Register, are intended to help institutions better manage the conflicts between protecting student confidentiality and safety that can occur in some situations and clarify a consensus reached at negotiated rulemaking sessions earlier this year.
Under the proposed rules, campuses would be required to have ongoing programs and awareness campaigns aimed at preventing dating violence, domestic violence, sexual assault and stalking, and these programs would have to be tailored to the campus culture and based on research or assessed for effectiveness.
ACE’s comments address a range of concerns, focused on areas where ED specifically invited input.
One of these provisions would allow students in a campus sexual assault proceeding to have an advisor of his or her choice attend proceedings, although institutions would be allowed to establish restrictions regarding the extent to which the advisor may participate in the proceedings (as long as the restrictions apply equally to both parties). ACE believes that in some circumstances, either the accuser or the accused could have the resources to hire legal counsel while the other party does not, which could complicate the ability of institutions to be fair to both students.
In fact, the Council writes, “The mere presence of legal counsel during disciplinary proceedings may create an actual or perceived advantage for that party, insofar as such presence of the counsel may intimidate the other party or members of the hearing panel.”
ACE encourages ED to consider ways to minimize the likelihood that a party or institutional official will be intimidated or otherwise prevented from participating fully in all aspects of a proceeding.
ACE also encourages the department to recognize that Clery Act compliance costs are significant and requests that it work with the higher education community to consider the overall compliance costs associated with Higher Education Act requirements and possible ways to minimize those costs.
Final regulations are expected to be published before Nov. 1. However, ED released a Dear Colleague letter July 14 advising institutions to “show a good-faith effort” to comply with the statute and include the new “Clery crimes” in their Oct. 1, 2014, Annual Security Report—which covers 2013—even before the rules are finalized.