Last month ED published new Final Rules for addressing sexual harassment, assault, and other forms of sex discrimination on college campuses. Among other changes, the new rules bring due process to campus for investigating and adjudicating cases.
Colleges will have to comply with the new rules by August 14, 2020 and that means, it’s time to update your campus crime and security policies and procedures as they relate to Title IX sexual harassment. Additionally, it is important to note – the Final Rules taking effect in August require institutions to post contact information for their designated Title IX coordinator on their website and in a number of other school publications such as school catalogs, handbooks, and employee publications along with information about how to report sexual harassment and file a formal complaint. The U.S. Department of Education and the Office of Civil Rights (OCR) released the following guidance to assist schools in understanding their obligations and making policy and procedural changes.
U.S. Department of Education Releases Final Title IX Rule
Title IX: Fact Sheet: Final Title IX Regulations
Title IX: U.S. Department of Education Title IX Final Rule Overview
Title IX: Summary of Major Provisions of the Department of Education’s Title IX Final Rule
Title IX: Summary of Major Provisions of the Department of Education’s Title IX Final Rule and Comparison to the NPRM
The New Title Ix Rule: Excluding Reliance On A Party’s “Statements” When The Sexual Harassment At Issue Consists Of Verbal Conduct
OCR Webinar: Title IX Regulations Addressing Sexual Harassment
ED’s Office of Civil Rights just released a Technical Assistance FAQ to help institutions meet their obligations related to the Americans with Disabilities Act and Title IX while offering distance learning related to COVID-19.
Title IX protects people from discrimination based on sex in education programs or activities at more than 7000 postsecondary institutions that receive Federal Financial Assistance. Last month, the U.S. Department of Education’s Office For Civil Rights announced they were withdrawing some Title IX policies and guidance issued under the Obama administration. The guidance that has been rescinded includes an April 4, 2011 Dear Colleague Letter on Sexual Violence and an OCR Q&A on Title IX and Sexual Violence from 2014. The Department also announced they will readdress the standards for Title IX through the negotiated rulemaking process later this year.
In the interim, the Department issued new guidance for institutions about how it will assess a school’s compliance with Title IX. A seven page document released by ED’s Office for Civil Rights, outlines a school’s responsibilities to address sexual misconduct.
The biggest change at issue is a change in the procedures a school should follow for resolving cases of reported sexual misconduct. Under the old guidance, schools were required to use the “preponderance of the evidence” standard when adjudicating and resolving allegations of student on student misconduct. Under the new guidance, findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.
Some supporters of the move to rescind these rules have long called for a higher standard of proof to be used in cases of rape and sexual assault such as those used by criminal courts where the burden is proof for vicious crimes is “beyond a reasonable doubt”. Supporters of the new OCR guidance see this as an opportunity for individuals accused of committing these crimes to get due process.
Opponents and advocates of victims defended the preponderance of the evidence standard say that requiring colleges to judge a case based on the higher evidentiary standard of beyond a reasonable doubt is extremely difficult. Colleges are not courts after all and it’s important to remember that schools are conducting disciplinary hearings, not civil or criminal court cases.
So what else changed?
Under the interim guidance, schools have some new flexibility including the discretion to apply either the preponderance of the evidence standard or the clear and convincing standard. Although schools are not required to allow appeals, they may choose to allow appeals solely from the accused or both parties. Mediation is also now permissible if a school deems it appropriate, and both parties agree voluntarily.
The OCR also made several recommendations to schools including one that schools should provide written notice to the accused, including sufficient details and with adequate time to prepare a response before initiating any proceedings. The OCR also recommends that schools provide written notices of the outcome of disciplinary hearings to both parties, at the same time.
No date has been set for the upcoming comment and negotiation periods.
Do you know the difference between the Annual Security Report and the Campus Safety and Security Survey?
Every school that receives Title IV FSA Funds, is required to publish an Annual Security Report by October 1st of each year. If your campus has on-campus student housing, you must also publish an Annual Fire Safety report by October 1st of each year. Your Campus Crime Survey is NOT your annual security report.
Although the Annual Security Report and the Annual Fire Safety report disclose similar data to the Campus Safety and Security Survey, it’s important to note the difference because they are two completely different things.
Think of it like this. The required annual report contains not only the crime statistics your school reported in the preceding years Security Survey, but also all of your institution’s safety and security polices and fire safety policies.
The annual security report and fire safety reports are to be published and disseminated to students and employees each year. Your institution may not use its participation in the survey to fulfill its annual report dissemination requirement. Nor may an institution simply provide a link to the Office of Postsecondary Education’s public website to fulfill the requirement. This is extremely important to note for compliance purposes since some schools have been cited for things like inadequately developed safety and security policies and failure to make the required annual disclosure.
In case you missed it, the Handbook for Campus Safety and Security Reporting was recently updated and includes information about Campus Security Policy Requirements. You can read it here.
Are you ready to begin reporting for this year’s Campus Crime Survey?
The Campus Crime and Security Survey, is due by October 1st of each year. The survey collects information regarding campus crime statistics. Schools are required to report certain statistics to ED’s Office of Postsecondary Education about crimes that occurred on campus using data maintained by their campus security department or designated school officials responsible for maintaining a security log. Additionally, schools are required to report any statistics provided from local or state police agencies.
Reporting Campus Crime requires input from local law enforcement authorities.
A school must make a reasonable effort to obtain the required statistics from police departments and as a best practice should keep documentation of their efforts to do so, as well as any responses they receive. Although the Campus Crime and Security Survey has historically had a one-hundred percent response rate from schools each year, some schools have been cited for failing to keep supporting documentation, and even failing to reach out to their local police. Some schools have even been cited for failing to disclose certain crimes, particularly those covered under Title IX and VAWA which include forcible sex offenses. All of the information schools report each year is extremely important for providing a safe environment for students and staff and keeping them informed about campus safety and security.
All Title IV postsecondary institutions are required to participate in this data collection with two exceptions:
- If your institution has a campus that opened after January 31st in the latest calendar year for which the survey collects data, that campus isn’t required to complete the survey. For example, if the campus opened in September 2016, the campus shouldn’t complete the 2017 survey which collects statistics for the entire 2016 calendar year. The campus is, however, required to comply with all other HEA safety- and security-related requirements and will be required to complete the 2018 survey.
- If yours is a distance education-only institution, the institution isn’t required to complete the survey.
In August the survey website will open for online registration. The link for the website is:http://surveys.ope.ed.gov/security/
A new User ID and Password is issued each year. Registration certificates went out in mid-July so you should be receiving a registration certificate by mail, which contains a user ID and Password to register on the survey website. Once registered, you can begin entering information for the data collection. OPE published a new Campus Safety Users Guide in 2017 which you can read here for more info.