Department of Education Offers Proposed Campus Sexual Assault Regulations

Today, the Department of Education offered proposed regulations for public comment in response to new legislative mandates regarding campus sexual assault adjudication and other issues. The new regulations are the product of negotiated rulemaking sessions held earlier this spring and are necessitated by changes to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act contained in the Violence Against Women Reauthorization Act of 2013. The proposed regulations—accompanied now by a 212-page preamble—are unchanged from the version released in April.

FIRE actively monitored the negotiated rulemaking process. As we noted at its conclusion, the draft of the proposed regulations that resulted from the process were significantly better for students’ rights than the drafts circulated earlier in the process. FIRE is particularly pleased that the proposed regulations do not attempt to mandate that campus judiciaries decide sexual assault cases using our judiciary’s lowest evidentiary threshold, the preponderance of the evidence standard.

FIRE is also pleased that the draft regulations make clear that both the accuser and accused must be provided the right to have an advisor of their choice present during campus disciplinary hearings over charges of dating violence, domestic violence, sexual assault, or stalking. In the recently passed Violence Against Women Reauthorization Act, Congress specifically provided, “the accuser and the accused are entitled to the same opportunities to have others present during an institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice.” This is an important step in the right direction.

The proposed regulations, however, define the term “Advisor” as “any individual who provides the accuser or accused support, guidance, or advice.” The proposed regulations also state that campus disciplinary proceedings will:

(iii) Provide the accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice;

(iv) Not limit the choice of advisor or presence for either the accuser or the accused in any meeting or institutional disciplinary proceeding; however, the institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; …

Unfortunately, however, this language (found on page 236) improperly empowers institutions to limit the role of the advisor, so that they cannot meaningfully participate in the process. A more accurate reading of the statute would reflect that it neither prohibits or empowers institutions to define that role.

FIRE will continue analyzing these materials and will provide formal written comment to the Department of Education.