2. We Don't Have a Crystal Ball, But...
Observations On Next Steps in Federal Legislation and Regulation on Title IX, the Clery Act, and the Broader Higher Education Act
March 6, 2018
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3. Presenter Joseph C. Storch
Associate Counsel and Chair of the Student Affairs Practice Group, State University of New York
Executive Editor of the Student Affairs Compliance Report & Analysis
@JosephStorchNY

4. The Future
Of Campus Safety Law

5. Title IX and Clery Clery Act Title IX VAWA Unequal pay Primary Crimes
Sexual harassment
Drug, alcohol and weapons
Sexual Violence reporting & response
Emergency notification
Admissions/financial aid
Missing persons
Athletics
Judicial policies
Funding, housing, academic resources
Timely warnings
Pregnancy discrimination

6. Title IX Timeline 1972 Title IX passes into law (broadly written)
January 2001 Revised Sexual Harassment Guidance (Notice and Comment Rulemaking); Update of 1997 Guidance (very little difference except impact of intervening cases)
October 2010: Department of Education Dear Colleague Letter on Bullying
April 2011: Department of Education Dear Colleague Letter on Sexual Harassment and Sexual Violence
April 2014: OCR Clarifications
April 2015: OCR Guide for TIXC
September 2017: OCR DCL and Q&A (don’t call it guidance!)

7. Title IX: Speaking of the 2017 DCL

8. Title IX: Speaking of the 2017 DCL

9. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain

10. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
60 days -> good faith effort for timely action

11. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
Ban on mediation in sexual assault lifted, but 2001 Notice and Comment Guidance still prohibit

12. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
Flexibility on interim measures tailored to case

13. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
Due process style requirements

14. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
Preponderance or Clear and Convincing

15. Title IX: Speaking of the 2017 DCL?
What Changed?
Not a whole lot; many requirements reverted to 2001 regulatory guidance
2011 DCL and 2014 DCL withdrawn
2001 regulations and 2015 DCL remain
Appeal to both or one party (but see Clery/VAWA mutual appeal requirement)

16. Title IX: Proposed Regulations
Department announced that it will issue proposed regulations (latest estimate is March 2018).
Not Negotiated Rulemaking.
Notice and Comment, final rule expected ?
Anticipate significant interest and comment.

17. Title IX: Proposed Regulations
Anticipate significant interest and comment.

18. Title IX: Proposed Regulations

19. Title IX: Proposed Regulations
Expectations (no guarantees):
Reduction of mandatory requirements including process specifics.
Emphasis on law enforcement.
Emphasis on due process/fair process.
No requirement on using/publishing specific standard of evidence (but I do not expect a requirement to use clear and convincing).
Allow use of mediation with requirements.
Provide “flexibility” to institutions in implementation.

20. Clery Act Title IX VAWA Unequal pay Primary Crimes Sexual harassment
Drug, alcohol and weapons
Sexual Violence reporting & response
Emergency notification
Admissions/financial aid
Missing persons
Athletics
Judicial policies
Funding, housing, academic resources
Timely warnings
Pregnancy discrimination

21. Clery Act History
Initially added to HEA in 1990 (amended many times since, most recently 2008 HEOA and 2013 VAWA)
First Handbook, 2005 (200 pages)
Second Handbook, 2011 (288 pages).
Latest Handbook in 2016 (265 pages, but…)
andbook.pdf

22. Clery Act Handbook Latest Handbook, 2016
handbook.pdf
Joseph Storch and Andrea Stagg, The 2016 Clery Handbook: New Developments and Important Changes, University Risk Management and Insurance Association White Paper (July 21, 2016).

23. Thinking about prevention and response: Why VAWA Helps

24. Thinking about prevention and response: Why VAWA Helps

25. Thinking about how we prevent
vs.

26. Prosper Act House HEW Committee Advanced on party-line vote
Significant changes across higher ed
Meaningful efficiency changes to Clery (not without controversy)
Dangerous First Amendment language

27. PROSPER: Changes on Campus Safety
Timely Warnings (fix)
Preventing Interference With Criminal Justice System (new, sort of)
Uniform Definitions (fix)
Due Process (minor changes but mostly tweaks compared to current law)
Standard of Evidence (restatement of current law)
Education Training Module (new, good luck)

28. PROSPER: Changes on Campus Safety
Campus Climate Surveys (new)
Survivors’ Counselors (new)
Know Your Rights Form (newish)
MOUs With Local Law Enforcement (new and improved)

29. PROSPER Troubling Aspects:
First Amendment Speech (and new Speech Czar).
First Amendment Religion (access for religious groups).
First Amendment Association (single-sex organizations).

30. PROSPER Other Changes: Anti Drug and Alcohol Anti Hazing
Goodbye P2P Requirements (must have a policy saying copyright violations are forbidden).
Lots of technical cleanup.
Other major changes to financial aid (outside scope of this presentation).

31. Senate Version: TBD, But

32. Senate Version: TBD, But
Much more requirement to work across the aisle.
Final version will require 60 votes in the Senate.
Likely to reflect many of the policy requirements (in concept if not in language) of House PROSPER.
Senate staff on PROSPER, but…
Impact of election year.

33. Senate Version: CASA? McCaskill, Gillibrand, and others proposed CASA.
Certain concepts/elements incorporated into PROSPER (technical and language differences).

34. Clery and TIX Changes Some general thoughts Impact of state law
Prevention > response > compliance

35. Q&A Session How Do I Ask a Question of the Panelist(s)?
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For Questions that Arise After the Conference
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36. 5 Takeaways from Today:
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37. Resources and References
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