By Scott Coffina

In recent years, the Obama Administration and the Department of Education have aggressively increased their focus on how colleges and universities address sexual violence and harassment. 

Congress has also begun a push for enhanced action by schools to prevent and investigate sexual assaults at colleges and universities. This February, a bipartisan group of senators led by Claire McCaskill (D-MO), Dean Heller (R-NV) and Kirsten Gillebrand (D-NY), announced that they were re-introducing the Campus Accountability and Safety Act (CASA). A week later, Rep. Carolyn Maloney (D-NY), with a bipartisan group of 12 co-sponsors, reintroduced the House version of the bill. S.590 and H.R.1310 are now pending in each chamber.  

If passed into law, the CASA would impose numerous new enforcement and reporting rules that could significantly increase the compliance burden on higher education.  

Here are seven things you need to know about the CASA:

(1)   Broader Reporting of Sexual Assault Incidents.

The bill would require more granular reporting in a school’s Annual Security Report (ASR) of the number and disposition of sexual assault incidents and related campus disciplinary actions reported to the Title IX Coordinator, including “a description of the final sanctions imposed by the institution for each incident for which an accused individual was found responsible.” 

(2)   Conduct and Publish Campus Climate Surveys.

Schools will be required to conduct campus climate surveys of students regarding their experiences with sexual violence and harassment every two years. To comply, schools must “ensure that an adequate, random, and representative sample size of students . . . complete the survey.” A survey must include questions directed to students who reported sexual violence incidents that are aimed at determining the nature of the incidents and whether and how they were reported. (It is an open question how the results of such targeted questions could be considered “random” or “representative”). Both institutions—in their ASRs—and the Department of Education (ED) would be required to publish survey results. 

(3)   MOU’s with Local Law Enforcement.

Schools would be required to enter into a Memorandum of Understanding (MOU) with the local law enforcement agency with jurisdiction over the campus to clearly delineate protocols for investigations and communication, and training related to sexual violence. The MOU would also include methods of information sharing, subject to the informed consent of a victim. Schools could seek a waiver if a local law enforcement agency refuses to enter into an MOU. 

(4)   Codification of Title IX Guidance.

A portion of ED’s recent Title IX guidance would be codified and subjected to negotiated rulemaking, including the definition of who is a “responsible employee” (RE) with an obligation to report incidents of sexual violence. Specifically, the CASA would define an RE to include an employee who “has the authority to take action to redress sexual harassment,” or who “has the duty to report sexual harassment or any other misconduct by students or employees to appropriate school officials.” The law would attempt to synthesize Title IX and the Clery Act by considering all designated “responsible employees” as campus security authorities under Clery.  

This definition is slightly different than that included in ED’s Title IX Guidance issued in 2001 and reaffirmed in 2014. For one thing, the scope of authority of an RE is expanded to include redressing or reporting “sexual harassment,” instead of “sexual violence” specifically. Also, the law would do away with a third category of RE included in the Guidance, which includes anyone a student would reasonably believe has the authority to report sexual violence or other misconduct. This third category of REs can be seen as redundant to the second category, and its removal therefore aimed at avoiding confusion or surplusage, but one question the text of the proposed CASA does not address is whether faculty are included within the definition. At most institutions, faculty do have a responsibility to report “other misconduct” (academic misconduct, for example), if not specifically sexual violence. Is it the law’s intent, then, to include faculty as “responsible employees?” If so, it would be preferable for the bill to state so explicitly, to avoid this obvious point of potential confusion. 

Another requirement for “university support for survivors of sexual violence” would be establishing a “campus security policy” that must include: 

  • The provision of “confidential advisors” to whom victims of sexual violence (including domestic and dating violence and stalking) can report anonymously. These confidential advisors, who would have to be trained for the role, would inform victims of their rights, reporting options and their potential consequences, and that a school’s disciplinary proceeding has limited jurisdiction and “should not be considered a substitute for the criminal justice process.” Confidential advisors also could help facilitate interim accommodations for the victim, such as changing living arrangements and implementing no contact orders. Confidential advisors would be required to report incidents of sexual violence as mandated by the Clery Act, but could do so without identifying the victim.
  • An amnesty policy by which students could, “in good faith,” report sexual violence without facing discipline by the school for non-violent student conduct violations, such as underage drinking.
  • Training for individuals involved in student grievance procedures and with responsibility for interviewing victims that must cover victim-centered, trauma-informed interview techniques, consent, cultural awareness training, and the effects of trauma.
  • A uniform process for student disciplinary proceedings specifically regarding claims of sexual violence that ensures no special treatment or “opt-out” for student-athletes or particular majors.
  • Written notice for the accused and accuser of a school’s decision to pursue a disciplinary case that summarizes the process, describes the rights of both parties, and identifies “the nature of the conduct on which the complaint is based.” The bill would require this notice to be provided sufficiently in advance of a disciplinary hearing to enable both parties to meaningfully participate, but does not address the parties’ access to the evidence that will be presented at the hearing, which is a common point of contention during and after these proceedings.  

(5)   Dramatic Increase in Fines for Violations.

Under the CASA, fines for violations of the Clery Act could go up substantially, from the present standard of up to $35,000 per violation, to a civil penalty “not to exceed $150,000” for each violation or per month a climate survey is not completed at the standard required. In addition, the CASA would authorize the Secretary of Education to impose fines of up to 1 percent of a school’s operating budget for noncompliance with the MOU and confidential advisor provisions, and also for a school not posting on its website information about reporting options and resources and disciplinary procedures for sexual violence cases, most, if not all, of which already are required to be published by the Clery Act. These 1 percent fines reflect legislators’ frustration that ED has not penalized schools for noncompliance with Title IX, which is the result of the only authorized sanction at the Department’s disposal for noncompliant schools being the “nuclear option” of withholding federal funds. 

(6)   Public Disclosure of Investigations.

The CASA would ratify ED’s policy of publicly identifying schools under investigation, based merely upon an initial evaluation of a complaint that, if substantiated, would constitute a violation of Title IX. 

(7)   Grants to Address Sexual Assault.

The CASA authorizes an ED grant program to award grants up to $500,000 on a competitive basis for schools to address sexual assault, sexual harassment, and other types of violence and harassment. Preferences would be given to schools with small endowments and low tuition and that have demonstrated a strong commitment to addressing these problems. 

If you have any questions about the Campus Accountability and Safety Act (CASA) or other issues facing educational institutions, including Title IX and the Clery Act, please contact Scott A. Coffina at (215) 988-2706 or Scott.Coffina dbr.com.

Source: Client Alert